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TOROWTO 

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INTERNATIONAL    LAW 


BY  THE  SAME  AUTHOR 

INTERNATIONAL     LAW.       A     Treatise. 

Vol.  I.  — Peace.     Third  Edition. 

Edited  by  Ronald  F.  Roxburgh.     8vo. 

THE  LEAGUE  OF  NATIONS  AND  ITS 
PROBLEMS.     Three   Lectures.     8vo. 


LONGMANS,  GREEN  AND  CO. 

LONDON,   NEW   YORK,   BOMBAY,   CALCUTTA,   AND    MADRAS 


INTERNATIONAL  LAW 

A   TREATISE 

By    L:     OPPENHEIM,    M.A.,    LL.D. 


FORMERLY    WHEWKLL    PROFESSOR   OF    INTERNATIONAI,    LAW    IN    THE    DNIVKIWITY    OF    CAM- 
BRIDGE,   MEMBER    OF    THE    IXSTITCTE    OF    INTEKXATIOXAL    LAW,    UONORART   MEMBKR 
OF    THE    ROYAL    ACADEMY    OF    JURISPRUDENCE    AT    MADRID,    CORRESPONDINQ 
MEMBER    OF    THE    AMERICAN    INSTTTOTE    OF    INTERNATIONAL    LAW 


Vol.  II.— war  AND  NEUTRALITY 

THIRD   EDITION 
EDITED    BY 

RONALD    F.    ROXBURGH 

OF    THE    MIDDLE    TEMPLE,     BARRISTER- AT-LAW,     FORMERLY    WHEWBLL 

SCHOLAR    IN    THE    UNIVERSITY    OF   CAMBRIDGE,     FORMERLY 

SCHOLAR    OF    TRINITY    COLLEGE,    CAMBRIDGE 


LONGMANS,    GREEN    AND    CO. 

39    PATERNOSTER    ROW,    LONDON 

FOLRTH  AVENUE  &  30TH  STREET.  NEW  YORK 

BOMBAY,  CALCUTTA,  AND  MADRAS 

1921 

All  rights  reserved 


4 


PREFACE 

TO  THE  THIRD  EDITION 

Oppenheim's  work  upon  the  revision  of  this  volume 
was  unfinished  when  he  died ;  but  most  of  the 
material  had  already  been  collected,  and  many 
passages  rewritten.  He  intended,  as  he  once  told 
me,  to  introduce  the  events  of  the  war  when  they 
illustrated,  extended,  or  challenged  general  principles 
hitherto  accepted.  But  for  the  history  of  the  war 
he  would  have  relied  on  his  friend  Garner's  Inter- 
national Law  and  the  World  War,  which  he  had 
already  read  in  manuscript.  By  kindly  lending  me 
the  proofs  of  that  book  (since  pubUshed),  Professor 
Garner  has  enabled  me  to  make  frequent  references 
to  it  according  to  the  author's  plan. 

The  war  has  involved  changes  in  this  volume ; 
yet  they  are  surely  fewer  than  might  have  been 
expected.  So  Oppenheim  felt ;  and  some  notes 
intended  for  this  preface  show  with  what  force  he 
would  have  argued  against  the  prevalent  impression 
that  the  war  has  made  an  end  of  the  laws  of  war. 
Confronted  with  the  many  brutal  violations  of  these 
laws  which  marred  the  struggle,  he  would  have 
argued  that  in  almost  every  case  the  offender  felt 
constrained  either  to  deny  the  charge  or  to  plead 
justification.  This  seemed  to  him  to  be  in  itself 
an  admission  of  the  power  of  the  law  in  normal  times. 
But  the  times  were  abnormal,  and  the  laws  of  war 


vi  PREFACE   TO    THE    THIRD    EDITION 

and  neutrality  were  admittedly  in  partial  suspense. 
This  he  would  have  attributed  in  part  to  the  unusual 
impotence  of  the  neutral  States  and  in  part  to  new 
conditions — aircraft,  submarines,  mines,  and  the 
network  of  Continental  railways — for  which  the  old 
rules  were  not  wholly  adapted.  Neutrals  naturally 
demanded  from  belligerents  that  they  should  obey 
the  old  rules  notwithstanding  the  changes.  But 
the  claim  of  the  belligerents  that  the  rules  should 
undergo  corresponding  change  was  quite  as  natural. 
Again,  since  neutrals  did  not  see  to  it  that  the  funda- 
mental rules  were  not  broken  by  either  belligerent, 
there  were  bound  to  be  reprisals.  Reprisals  may 
injure  neutrals  as  well  as  States  at  war,  and  they 
provoke  counter-reprisals  and  more  reprisals  in  an 
unending  chain.  This  Oppenheim  held  to  be  a 
principal  cause  of  the  partial  anarchy  of  the  war, 
which  he  likened  to  revolution  within  the  State. 
When  order  is  re-established,  the  law  revives.  Even 
then,  no  doubt,  many  criminals  escape  unpunished. 
But  no  one  would  argue  on  that  account  that  there 
was  no  law. 

In  the  edition  of  1912,  Oppenheim  urged  that  the 
Declaration  of  London  should  be  ratified.  But 
when  the  war  came,  he  saw  that  the  declaration, 
even  if  it  had  been  ratified,  could  not  have  survived 
when  Germany  had  pulled  down  in  Belgium  the 
pillars  upon  which  International  Law  stood. 

Considerations  such  as  these  are  reflected  in 
Oppenheim' s  revisions  in  the  chapter  on  the  means 
of  securing  legitimate  warfare.  Other  important 
changes  and  additions  which  he  himself  made  are  to 
be  found  in  §  53  in  the  discussion  upon  the  legality 
of  war,  in  §  57a  dealing  with  the  threatened  dis- 
appearance of  the  distinction  between  members  of 
armed  forces   and  civilians,  in   §§  294,  299  which 


PREFACE    TO    THE   THIRD    EDITION  Vll 

concern  neutral  duties  and  the  recognition  of 
neutrality  by  belligerents,  in  §  319  discussing  the 
legality  of  measures  of  reprisal  affecting  neutrals, 
in  §  34:8a  examining  the  status  of  shipwrecked  com- 
batants coming  into  neutral  territory,  in  the  sections 
dealing  with  the  right  of  angary,  in  many  of  the 
sections  relating  to  contraband,  in  §  413a  concern- 
ing the  seizure  of  enemy  reservists  at  sea,  in  §  428a 
relatmg  to  the  call  at  an  enemy  port  of  a  vessel  with 
a  neutral  destination,  and  in  §  434  discussing  the 
law  administered  by  Prize  Courts. 

The  establishment  of  the  League  of  Nations  called 
for  modifications  and  additions  in  the  chapters 
dealing  with  the  settlement  of  disputes  without 
resort  to  war  ;  but  Oppenheim  had  not  yet  made 
them  when  his  last  illness  came  upon  him,  and  this 
task  fell  upon  the  present  writer.  New  material 
has  also  been  introduced  in  §§  88-92  on  enemy 
character,  in  §  100a  on  persona  standi  in  judicio,  in 
§  101  on  trading  with  the  enemy,  and  in  §  102  on 
enemy  private  property  and  debts.  Reference,  for 
which  Oppenheim  is  not  alone  responsible,  has  also 
been  made  to  the  treatment  of  enemy  merchantmen 
found  by  the  belligerents  in  their  harbours  at  the 
outbreak  of  the  World  War,  to  the  treatment  of 
prisoners,  and.  to  other  important  controversies 
which  sprang  up  during  the  contest.  The  author's 
notes  on  air  warfare  have  been  brought  together 
and  expanded  in  a  new  chapter.  The  fate  of  the 
Declaration  of  London  and  recent  changes  in  the 
conception  of  neutrahty  are  recorded  in  §  292.  Two 
new  sections  have  been  added  to  §  390  relating  to 
the  long-distance  blockade.  On  the  other  hand, 
the  chapter  on  International  Prize  Courts  has  been 
curtailed,  as  the  Hague  project  of  1907  has  lost  the 
position  which  it  held  in  1912. 


Viii  PREFACE    TO   THE   THIRD    EDITION 

Mr.  C.  E.  A.  Bedwell,  IVIr.  H.  A.  C.  Sturgess,  and 
Messrs.  T.  and  A.  Constable,  Ltd.,  have  again  kindly- 
made  their  respective  contributions  in  revising  the 
Index  and  Table  of  Cases  and  attending  to  the 
typography  of  the  book. 

Ronald  F.  Roxburgh. 


4  New  Squake,  Lincoln's  Inn. 


[Events  are  recorded  in  this  vohivie  doitm  to  the  end  of  February  1921.] 


A 
^i^ 


ABBREVIATIONS 

OF  TITLES  OF  BOOKS,  ETC.,  QUOTED  IN  THE  TEXT 


The  books  referred  to  in  the  bibliography  and  notes  are,  as  a 
rule,  quoted  with  their  full  titles  and  the  date  of  their  publication. 
But  certain  books,  periodicals,  and  conventions  which  are  very 
often  referred  to  throughout  this  work  are  quoted  in  an  abbrevi- 
ated form,  as  follows  : — • 


A.J. 

Alvarez,  Grande 

Guerre 
Annuaire 

Ariga 
Barboux 


Barclay, 

Problems 
Bemsten 
Bluntschli 


Boeck 

Boidin 

Bonfils 

Borchard 

Bordwell 

Buimerincq 
Calvo 


The   American   Journal   of   International 

Law. 
Alvarez,  La  Grande  Guerre  Europeenne  et 

la  Neutrahte  du  Chili  (1915). 
Aimuaire    de    I'lnstitut    de    Droit   inter- 
national. 
Ariga,  La  Guerre  Russo-Japonaise  (1908). 
Barboux,   Jurisprudence    du    Conseil   des 

Prises   pendant   la   Guerre   de    1870-71 

(1871). 
Barclay,  Problems  of  International  Prac- 
tice and  Diplomacy  (1907). 
Bemsten,  Das  Seekriegsrecht  (1911). 
Bluntschli,  Das  modeme  Volkerrecht  der 

civiUsirten     Staaten     als     Rechtsbuch 

dargesteUt,  3rd  ed.  (1878). 
Boeck,   De  la  Propriete  privee   ennemie 

sous  Pavilion  ennemi  (1882). 
Boidin,  Les  Lois  de  la  Guerre  et  les  deux 

Conferences  de  la  Haye  (1908). 
Bonfils,    Manuel    de    Droit    international 

pubHc,  7th  ed.  by  Fauchille  (1914). 
Borchard,  The  Diplomatic  Protection  of 

Citizens  Abroad  (1915). 
Bordwell,  The  Law  of  War  between  Belh- 

gerents  (1908). 
Buimerincq,  Das  Volkerrecht  (1887). 
Calvo,  Le  Droit  international  theorique  et 

pratique,  5th  ed.,  6  vols.  (1896). 


ABBREVIATIONS   OF  TITLES   OF  BOOKS 


Convention  I,  = 
Convention  II.      = 

Convention  III.  = 
Convention  IV.  = 
Convention  V.       = 

Convention  VI.     = 

Convention  VII.  = 
Convention  VIII.  = 
Convention  IX.     = 

Convention  X.      = 

Convention  XI.     = 

Convention  XII.  = 
Convention  XIII.  = 

Despagnet  = 

Deuxieme  Confe-  = 
rence,  Actes 

Dupuis  = 

Dupuis,  Guerre,      = 


Hague  Convention  for  the  Pacific  Settle- 
ment of  International  Disputes. 

Hague  Convention  respecting  the  Limita- 
tion of  the  Employment  of  Force  for  the 
Recovery  of  Contract  Debts. 

Hague  Convention  relative  to  the  Opening 
of  Hostilities. 

Hague  Convention  concerning  the  Laws 
and  Customs  of  War  on  Land. 

Hague  Convention  respecting  the  Rights 
and  Duties  of  Neutral  Powers  and 
Persons  in  War  on  Land. 

Hague  Convention  relative  to  the  Status 
of  Enemy  Merchant -ships  at  the  Out- 
break of  Hostihties. 

Hague  Convention  relative  to  the  Conver- 
sion of  Merchant -ships  into  War-ships. 

Hague  Convention  relative  to  the  Laying 
of  Automatic  Submarine  Contact  Mines. 

Hague  Convention  respecting  Bombard- 
ment by  Naval  Forces  in  Time  of 
War. 

Hague  Convention  for  the  Adaptation  of 
the  Principles  of  the  Geneva  Convention 
to  Maritime  Warfare. 

Hague  Convention  relative  to  certain  Re- 
strictions on  the  Exercise  of  the  Right 
of  Capture  in  Maritime  War. 

Hague  Convention  relative  to  the  Estab- 
lishment of  an  International  Prize  Court. 

Hague  Convention  respecting  the  Rights 
and  Duties  of  Neutral  Powers  in  Naval 
War. 

Despagnet,  Cours  de  Droit  international 
public,  4th  ed.  by  de  Boeck  (1910). 

Deuxieme  Conference  Internationale  de  la 
Paix,  Actes  et  Documents,  3  vols. 
(1908-1909). 

Dupuis,  Le  Droit  de  la  Guerre  maritime 
d'apres  les  Doctrines  anglaises  con- 
temporaines  (1899). 

Dupuis,  Le  Droit  de  la  Guerre  maritime 
d'apres  les  Conferences  de  la  Haye  et 
de  Londres  (1911). 


ABBREVIATIONS   OF  TITLES   OF  BOOKS 


XI 


Field 
Fiore 

Fiore,  Code 

Gareis 

Gamer 

Gessner 

Grotius 

Hague  Regula- 
tions 

Hall 

Halleek 

Hartmann 

Hautefeuille 

Heffter 
Heilbom,  Rechte 


Heilbom,  System 

Hershey 

Higgins 

Holland,  Prize 
Laiv 


Field,  Outlines  of  an  International  Code, 
2  vols.  (1872-1873). 

Fiore,  Nouveau  Droit  international  public, 
deuxieme  edition,  traduite  de  I'ltalien 
et  annotee  par  Antoine,  3  vols.  (1885). 

Fiore,  International  Law  Codified.  Trans- 
lation from  the  5th  Italian  edition  by 
Borchard  (1918). 

Gareis,  Institutionen  des  Volkerrechts, 
2nd  ed.  (1901). 

Gamer,  International  Law  and  the  World 
War  (1920). 

Gessner,  Le  droit  des  Neutres  sur  Mer 
(1865). 

Grotius,  De  Jure  Belli  ac  Pacis  (1625). 

Hague  Regulations  respecting  the  Laws 
and  Customs  of  War  on  Land,  adopted 
by  the  Hague  Peace  Conference  of  1907. 

Hall,  A  Treatise  on  International  Law, 
7th  ed.  (1917)  by  A.  Pearce  Higgins. 

Halleek,  Litemational  Law,  4th  Enghsh 
ed.  by  Sir  Sherston  Baker,  2  vols.  (1908). 

Hartmann,  Institutionen  des  praktischen 
Volkerrechts  in  Friedenszeiten  (1874). 

Hautefeuille,  Des  Droits  et  des  Devoirs  des 
Nations  neutres  en  Temps  de  Guerre 
Maritime,  2nd  ed.  3  vols.  (1858). 

Heffter,  Das  europaische  Volkerrecht  der 
Gegenwart,  8th  ed.  by  Geftcken  (1888). 

Heilbom,  Rechte  und  Pflichten  der  neu- 
tralen  Staaten  in  Bezug  auf  die  wahrend 
des  Krieges  auf  ihr  Gebiet  iibertretenden 
Angehorigen  einer  Armee  und  das 
dorthin  gebrachte  Kriegsmaterial  der 
kriegfiihrenden  Parteien  (1888). 

Heilbom,  Das  System  des  Volkerrechts 
entwickelt  aus  den  volkerrechtlichen 
Begriffen  (1896). 

Hershe}^  The  Essentials  of  International 
Public  Law  (1912). 

Higgins,  The  Hague  Peace  0)nferences 
(1909). 

Holland,  A  Manual  of  Xaval  Prize  Law 
(1888). 


xu 


ABBREVIATIONS    OF  TITLES   OF   BOOKS 


Holland,  Studies  = 

Holland,  Juris-  = 

prudence 

Holland,  War  = 

Holtzendorff  = 

Hurst  = 

Kleen  = 

Kluber  = 

KLriegsbrauch  = 


Land  Warfare  = 

Lawrence  = 
La-wxence,  Essays  — 

Lawrence,  War  = 

Lemonon  = 

Liszt  = 

Longuet  = 

Lorimer  = 

Maine  = 

Manning  = 

Martens  = 


Holland,    Studies   in    Litemational    Law 

(1898). 
Holland,  The  Elements  of  Jurisprudence, 

llthed.  (1910). 
Holland,   The    Laws    of    War    on    Land 

(1908). 
Holtzendorff,  Handbuch  des  Volkerrechts, 

4  vols.  (1885-1889). 
Hurst  and  Bray,  Russian  and  Japanese 

Prize    Cases,    vol.    i.    (1912),    vol.    ii. 

(1913). 
Kleen,  Lois  et  Usages  de  la  NeutraHte, 

2  vols.  (1900). 
Kliiber,  Europaisches  Volkerrecht,  2nd  ed. 

by  Morstadt  (1851). 
Kriegsbrauch  im  Landkriege  (1902).  (Heft 

31     der    kriegsgeschichthchen     Einzel- 

schriften,  herausgegeben  vom   Grossen 

Generalstabe,    kriegsgeschichthche    Ab- 

theilung  I.)- 
Edmonds  and  Oppenheim,  Land  Warfare. 

An  Exposition  of  the  Laws  and  Usages 

of  War  on  Land  for  the  Guidance  of 

Officers  of  His  Majesty's  Army  (1912). 
Lawrence,  The  Principles  of  Litemational 

Law,  4th  ed.  (1910). 
Lawrence,  Essays  on  some  Disputed  Ques- 
tions   of    Modem    Litemational    Law 

(1884). 
Lawrence,  War  and  Neutrality  in  the  Far 

East,  2nd  ed.  (1904). 
Lemonon,  La  Seconde  Conference  de  la 

Paix(1908). 
Liszt,  Das  Volkerrecht,  6th  ed.  (1910). 
Longuet,  Le  Droit  actuel  de  la  Guerre 

terrestre  (1901). 
Lorimer,  The  Listitutes  of  Litemational 

Law,  2  vols.  (1883-1884). 
Maine,  Litemational  Law,  2nd  ed.  (1894). 
Manning,  Commentaries  on  the   Law  of 

Nations,  new    ed.    by    Sheldon    Amos 

(1875). 
Martens,  Volkerrecht,  German  translation 

of  the  Russian  original,  2  vols.  (1883). 


ABBREVIATIONS   OF  TITLES   OF   BOOKS 


XUl 


Martens,  G.  F. 


Martens,  R. 
Martens,  N.R. 
Martens,  N.S. 
Martens,  N.R.G. 
Martens,  N.R.G. 
JMartens,  N.R.G. 
Martens,  Causes 

celebres 
M^rignhac 


Meurer 

Moore 

Moore,  Arbitra- 
tions 

Nippold 

Nys 

Ortolan 

Perels 

Phillimore 

Piedelievre 

PiUet 

Pistoye  et 
Duverdy 
Pradier-Fodere 

Pufendorf 


=  G.  F.  Martens,  Precis  du  Droit  des  Gens 
modemc  de  1' Europe,  nouvelle  ed.  par 
Verge,  2  vols.  (1858). 

These  are  the  abbreviated   quo- 
tations   of    the    different    parts    of 
■  Martens,    Recueil    de    Traites    (see 
n  J  a         p.    118   of   vol.    i.),    which   are    in 

o  J  o  common  use. 

3rd  Ser.  j 

=  Martens,  Causes  celebres  du  Droit  des 
Gens,  2nd  ed.,  5  vols.  (1858-1861). 

=  Merignhac,  Traite  de  Droit  pubUc  inter- 
national, vol.  i.  (1905),  vol.  ii.  (1907), 
vol.  iii«.  (1912). 

=  Meurer,  Die  Haager  Friedenskonferenz, 
2  vols.  (1905-1907). 

=  Moore,  A  Digest  of  International  Law, 
8  vols.,  Washington  (1906). 

=  Moore,  History  and  Digest  of  the  Arbitra- 
tions to  which  the  United  States  have 
been  a  Party,  6  vols.  (1898). 

=  Nippold,  Die  zweite  Haager  Friedens- 
konferenz, 2  vols.  (1908-1911). 

=  Nys,  Le  Droit  international,  3  vols.,  2nd 
ed.  (1912). 

=  Ortolan,  Regies  Internationales  et  Diplo- 
matie  de  la  Mer,  2  vols.,  3rd  ed. 
(1856). 

=  Perels,  Das  intemationale  offentliche 
Seerecht  der  Gegenwart,  2nd  ed. 
(1903). 

=  Phillimore,  Commentaries  upon  Inter- 
national Law,  4  vols.,  3rd  ed.  (1879- 
1888). 

=  Piedehevre,  Precis  de  Droit  international 
pubHc,  2  vols.  (1883-1895). 

=  Pillet,  Les  Lois  actueUes  de  la  Guerre 
(1901). 

=  Pistoye  et  Duverdy,  Traite  des  Prises 
maritimes,  2  vols.  (1854-1859). 

=  Pradier-Fodere,  Traite  de  Droit  inter- 
national pubhc,  8  vols.  (1885-1906). 

=  Pufendorf,  De  Jure  Naturae  et  Gentium 
(1672). 


XIV 


ABBREVIATIONS   OF  TITLES   OF  BOOKS 


Reddie,  Be- 
searckes 

R.G. 

B.I. 

Rivier 

Satow,  Diplo- 
matic Practice 
Schramm 

Scott,  Confer- 
ences 
Spaight 
Takahashi 

Taylor 

Testa 

Twiss 

Ullmami 
U.S.  Navai  War 
Code 


Vattel 

Walker 

Walker,  History 
Walker,  Science 
Wehberg 


Reddie,  Researches,  Historical  and  Critical, 
in  Maritime  International  Law,  2  vols. 
(1844). 

Revue  generale  de  Droit  international 
public. 

Revue  de  Droit  international  et  de  Legis- 
lation comparee. 

Rivier,  Principes  du  Droit  des  Gens,  2  vols. 
(1896). 

Satow,  A  Guide  to  Diplomatic  Practice, 
2  vols.  (1917). 

Schramm,  Das  Prisenrecht  in  seiner  neues- 
ten  Gestalt  (1913). 

Scott,  The  Hague  Peace  Conferences  of 
1899  and  1907,  vol.  i.  (1909). 

Spaight,  War  Rights  on  Land  (1911). 

Takahashi,  Litemational  Law  appUed  to 
the  Russo-Japanese  War  (1908). 

Taylor,  A  Treatise  on  International  Public 
Law  (1901). 

Testa,  Le  Droit  pubUc  international  mari- 
time, traduction  du  Portugais  par 
Boutiron  (1886). 

Twiss,  The  Law  of  Nations,  2  vols.,  2nd 
ed.  (1884,  1875). 

UUmann,  Volkerrecht,  2nd  ed.  (1908). 

The  Laws  and  Usages  of  War  at  Sea,  pub- 
lished on  June  27,  1900,  by  the  Navy 
Department,  Washington,  for  the  use  of 
the  U.S.  Navy  and  for  the  information 
of  all  concerned. 

Vattel,  Le  Droit  des  Gens,  4  books 
in  2  vols.,  nouvelle  ed.  (Neuchatel, 
1773). 

Walker,  A  Manual  of  Pubhc  International 
Law  (1895). 

Walker,  A  History  of  the  Law  of  Nations, 
vol.  i.  (1899). 

Walker,  The  Science  of  International  Law 
(1893). 

Wehberg,  Das  Seekriegsrecht  (1915)  in 
Stier-Somlo,  Handbuch  des  Volker- 
rechts. 


ABBREVIATIONS   OF  TITLES   OF   BOOKS 


XV 


VVehberg, 
Kommentar 


Westlake 

Westlake, 
Chapters 
Westlake,  Papers 


Wharton 
Wheaton 
Zoni 
Z.I. 

z.v. 


Wehbcrg,    Kommentar    zu    clem    llaager 

Abkommen     betreftend    die    friedliche 

Erledigung  intemationaler  Sti-eitigkeiten 

(1911). 
Westlake,  International  Law,  2  vols.,  2nd 

ed.  (1910-1913). 
Westlake,  Chapters  on  the  Principles  of 

International  Law  (1894). 
The  Collected  Papers  of  John  Westlake  on 

PubUc  International  Law,  ed.  by  L.  Op- 

penhcim  (1914). 
Wharton,  A  Digest  of  the  International 

Law  of  the  United  States,  3  vols.  (188G). 
Wheaton,  Elements  of  International  Law, 

8th  American  ed.  by  Dana  (1866). 
Zom,  Das  Kriegsrecht  zu  Lande  in  seiner 

neuesten  Gestaltimg  (1906). 
Zeitschrift  fiir  intematiouales  Recht. 
Zeitschrift  fiir  Volkerrecht. 


VOL.   II. 


TABLE    OF    CASES 

Jbbot,  Hanger  v.,  (1867)  6  Wall.  532.     §  100a,  p.  152. 

Adem,  The,  (1815)  2  Dod.  48.     §  194,  p.  274  ;  §  431,  p.  620. 

Adela,  The,  (1867)  6  Wall.  266.     §  362,  p.  501. 

Adonis,  The,  (1804)  5  C.  Kob.  256.     §  386,  p.  534  ;  §  390,  p.  538. 

Adula,  The,  (1899)  176  U.S.  361.     §  378,  p.  523. 

Aghios  Gorghios,  The  (1912),  Garner,  i.  §  129  n.     §  91,  p.  132. 

AktiengeseUschaftfUr  Cartonnagen  Industrie,  Stevenson  (JJugh)  and  Sons 

v.,  [1917]   1   K.B.   842;  [1918]  A.C.   239.     §  101,  p.   156; 

§  102,  p.  158. 
Alexander,  The,  (1801)  4  C.  Rob.  93.     §  390,  p.  538. 
Almna,  The,  (1916)  2  B.  and  C.P.C.  186,  affirmed  on  appeal  3  B. 

and  C.P.C.  54.     §  404,  p.  578  ;  §  434,  p.  628. 
American  Transatlantic  Company,  Owners  of  the  Steamships  Kankakee, 

Hocking,  and  Genesee  v.  His  Majesty's  Procurator-General,  The 

Times,  July  24,  1920.     §  89,  p.  127. 
Amiral  Ganteaume,  The  (1914),  Garner,  i.  §  319.     §  186,  p.  264. 
Andersen  v.  Marten,  [1907]  2  K.B.  248  ;  [1908]  A.C.  334.     §  435, 

p.  630. 
Anglo-Mexican,  The,  (1917)  3  B  and  C.P.C.  24.     §  90,  p.  129. 
Anna,  The,  (1805)  5  C.  Rob.  373.     §  362,  p.  500. 
Anne,  The,  (1818)  3  Wheaton  435.     §  362,  p.  501. 
Ann  Green,  The,  (1812)  1  Gallison  274.     §  92,  p.  134. 
Annie  Johnson,  The,  (1917)  3  B.  and  C.P.C.  138.     ^  405,  p.  580. 
Antluni  V.  Fisher,  (1782)  2  Doug.  649  n.     §  195,  p.  277. 
ylntoine  v.  Morshead,  (1815)  6  Taunt.  237.     §  101,  p.  155. 
Antwerpen,  The,  (1919)  3  B.  and  C.P.C.  486  n.     §  405,  p.  580. 
Apollo,  The.     Calvo,  v.,  §  2989.     §  427,  p.  617. 
Appam,  The,  (1917)  243  U.S.  124.     §  328,  p.  440  ;  §  328a,  p.  442. 
Arabia,  The  (1904),  Hurst  and  Bray,  i.  p.  52.     §  394,  p.  553. 
Aryel,  The.     See  Orel,  The. 
Asturian,  The,  (1916)  2  B.  and  C.P.C.  202  ;  [1916]  P.  150.     §  90, 

p.  129. 
Atalanta,  The,  (1808)  6  C.  Rob.  440.     §  409,  p.  593  ;  §  412,  p.  597. 


TABLE   OF   CASES  XVll 

Atlas  and  Lighters,    The,  (1916)   2  B.  and  C.P.C.   470.     §  102a, 

p.  162. 
Australia,  The  (1905),  Hurst  and  Bray,  ii.  p.  373.     HlO,  p.  595  ; 

§  436,  p.  631. 
Axel  Johnsm,  Tlie,  (1917)  2  B.  and  C.P.C.  532.     §  399,  p.  564. 
Baltica,  The,  (1857)  11  Moo.  P.C.  141.     §  88,  p.  120;  §  90,  p. 

129;  §91,  p.  131. 
Balto,  The,  (1917)  2  B.  and  C.P.C.  398.     §  403a,   p.  576. 
Bangor,  The,  (1916)  2  B.  and  C.P.C.  206.     §  72,  p.  97  ;  ^  181,  p. 

257  ;  §  362,  p.  501. 
Baron  Stiernblad,  The,  (1917)  3  B.  and  C.P.C.  17.     §  421,  p.  611. 
Bawean,  The,  (1917)  3  B.  and  C.P.C.  116.     §  177,  p.  250. 
Belgia,  The,  (1915)  1  B.  and  C.P.C.  303  ;  (1916)  2  B.  and  C.P.C. 

32.     §  102«,  p.  161. 
Bellas,  The,  (1914)  1  B.  and  C.P.C.   95.     §  91,  p.  132  ;  §  102a, 

p.  164. 
Benito  Estenger,  The,  (1899)  176  U.S.  568.     §  91,  p.  131. 
Bentzen  v.  Boyle.     See  Thirty  Hogsheads  of  Sugar  v.  Boyle. 
Berlin,  The,  (1914)  1  B.  and  C.P.C.  29.     §  187,  p.  266. 
Bermuda,  The,  (1865)  3  Wall.  514.     ^385,   p.   532;  §  400,   pp. 

567,  568. 
Bemisse,  The,  (1919)  3  B.  and  C.P.C.  517.     §  421,  p.  611  ;  §  421a, 

p.  612. 
Betsey,  The,  (1799)  1  C.  Rob.  332.     §  385,  p.  531. 
Blackburne,  Cornu  v.,  (1781)  2  Doug.  640.     §  195,  p.  277. 
Blythe,  Green,  Jourdain  and  Co.  ;  Karberg  {Arnhold)  and  Co.  v.,  [1916] 

1  KB.  495,  at  p.  505.     §  101,  p.  156. 
Bonna.,  The,  (1918)  3  B.  and  C.P.C.  163.     §  403a,  p.  576. 
Bousmialcer,  Ex  parte,  (1806)  13  Ves.  71.     §  100a,  p.  152. 
Bowdm,  Esposito  v.,  (1857)  7  E.  and  B.  763.     §  101,  p.  156. 
Boyle,  Thirty  Hogsheads  of  Sugar  v.,  (1815)  9  Cranch  191.     §  90, 

p.  129. 
Braune,  De  JFahl  v.,  (1856)  25  L.J.  (N.S.)  Ex.  343.     §  100a,  p.  152. 
Calchas,  The  (1905),  Hurst  and  Bray,  i.  p.   143.     §  394,  pp.  553, 

555. 
Calypso,  The,  (1799)  2  C.  Rob.  298.     §  184,  p.  529. 
Canton,  The,  (1916)  2  B.  and  C.P.C.  264.     §  365,  p.  509. 
Carolina,  The,  (1802)  4  C.  Rob.  256.     §  408,  p.  589. 
Carolim,  The,  (1808)  6  C.  Rob.  461.     §  408,  p.  592. 
Catharina  Elizabeth,  The,  (1804)  5  C.  Rob.  232.     §  85,  p.  114. 
Ceylm,  The,  (1811)  1  Dod.  105.     §  185,  p.  262. 
Charlotta,  The,  (1810)  Edwards  252.     §  386,  p.  534. 


Xviii  TABLE   OF  CASES 

Charasse,  Ex  parte:  in  re  Grazebrook,  (1865)  34  L.J.  Bank.  17.     § 

398,  p.  564. 
Chile,  The,  (1914)  1  B.  and  C.P.C.  1,  at  p.  7.     §  102a,  pp.  163,  164. 
Circassian,  The,  (1864)  2  Wall.  135.     §  378,  pp.  522,  523  ;  §  380, 

p.  526. 
Clan  Grant,  The,  (1915)  1  B.  and  C.P.C.  272.     §  90,  p.  130. 
Colonia,  The  (1915),  E.G.,  xxii.  Jurisprudence,  pp.  45-47  ;  Garner, 

i.  §  12.3.     §  91,  p.  132. 
Columbia,  The,  (1799)    1   C.   Rob.    154.     §  382,   p.   527  ;  §    390, 

p.  538. 
Commercen,  The,  (1814)  1  Wheaton  382.     §  401,  p.  569. 
Concadoro,  The,  (1915)  1  B.  and  C.P.C.  390;  (1916)   2   B.    and 

C.P.C.  64.     §  102a,  p.  162. 
Constantinos,  The,  (1916)  2  B.  and  C.P.C.  140.     §  395,  p.  558. 
Continental  Insurance  Co.,  Eobinson  and  Co.  v.,  [1915]  1  K.B.  155, 

at  p.  159.     ^  100a,  p.  152. 
Continental  Tyre  and  Rubber  {Great  Britain)  Co.  Ltd.,  Daimler  Co. 

Ltd.  v.,  [1916]  2  A.C.  307.     §  88a,  p.  123. 
Cwnu  V.  Blackburne,  (l78l)  2  Doug.  640.     §  195,  p.  277. 
Craft  captured  on  Victoria  Nyanza,  In  re,  (1918)  3  B.  and  C.P.C. 

295.     §  181,  p.  256. 
Dacia,  TJie  (1915),  E.G.,  xxii.  (1915),  Jurisprudence,  p.  83  ;  A.  J.,  ix. 

(1915),  p.  1015.     §  91,  p.  132. 
Daifje,  The,  (1800)  3  C.  Rob.  139.     §  225,  p.  313. 
Daimler  Co.  Ltd.  v.    Continental  Tyre  and  Rubber  {Great  Britain) 

Co.  Ltd.,  [1916]  2  A.C.  307.     §  88a,  p.  123. 
Dandolo,  The,  (1916)  2  B.  and  C.P.C.  339.     §  102,  p.  160  ;  §  177, 

p.  250. 
Danous,  The,  (1802)  4  C.  Rob.  255  n.     §  88,  p.  121  ;  §  90,  p.  129. 
De  Fortuyn,  The,  (1760)  Burrell  175.     §  181,  p.  257. 
De  Jager  v.  Attorney-General  for  Natal,  [1907]  A.C.  326.     §  100, 

p.  149. 
Derfflinger,  The,  (1916)  2  B.  and  C.P.C.  36.     §  102a,  p.  163. 
Deutsches  Kohlen  Depot  Gesellschaft ;  Egypt,  H.M.  Frociirator  in  v., 
(1916)   2  B.  and  C.P.C.   439  ;  (1918)  3  B.  and  C.P.C.  264. 
§  102a,  p.  162  ;  §  187,  p.  266. 
De  Wahl  v.  Braune,  (1856)  25  L.J.  (N.S.)  Ex.  343.     §  100a,  p.  152. 
De  Wiltz  V.  Hendricks,  (1824)  9  Moo.  586.     §  352,  p.  485. 
Diaz  V.  United  States,  (1912)  222  U.S.  574.     §  184,  p.  262  ;  §  227, 

p.  316. 
Dirigo,  The,  (1919)  2  B.  and  C.P.C.  439.     §  92,  p.  135 ;  §  177,  p. 
250 ;  S  406,  p.  582. 


TABLE   OF   CASES  XIX 

Dominion  Coal  Co.  v.  Maskinonge  Steamship  Co.,  (191G)  33  T.L.R. 

132,  340  ;  (1917)  34  T.L.R.  212.     55  70,  p.  92. 
Dmohoe,  Moss  v.,  (1916)  32  T.L.R.  343.     !^  101,  p.  155. 
Brief ontein  Consolidated  Mines,  Janson  v.,  [1902]  A.C.  484,  at  p. 

497.     §  88a,  p.  123  ;  §  100a,  p.  152. 
Durant,  Shepelcr  v.,  (1854)  14  C.B.  582.     §  100,  p.  152. 
Dilsseldoi-f,  The,  (1919)  3  B.  and  C.P.C.  466;  [l920]  A.C.   1034. 

§  181,  p.  257;  §362,  p.  500. 
Eden  Hall,  The,  (1916)  2  B.  and  C.P.C.  84.     §  102,  p.  160. 
Edna,  The,  (1919)  3  B.  and  C.P.C.  407.     §  91,  p.  133. 
Egypt,  H.M.  Procurator  in  v.  Deutsches  Kohlen  Depot  Gesellschaft, 

(1916)  2B.  and  C.P.C.  439;  (1918)   3  B.  and  C.P.C.   264. 

§  102a,  p.  162  ;  §  187,  p.  266. 
Ekaterinoslav,  The  (1904),  Hurst  and  Bray,  ii.  p.  1.     §  181,  p.  257  ; 

§  320,  p.  431. 
Elida,  The  (1915),  Z.V.,  ix.  p.  109.     §  71,  p.  93  ;  §  434,  p.  627. 
Eliza  and  Katy,  The,  (1805)  6  C.  Rob.  192.     §  428,  p.  617. 
Elizabeth,  The,  (1810)  Edwards  198.     §  386,  p.  534. 
Elsebe,  The,  (1804)  5  C.  Rob.  174.     §  425,  p.  615. 
Elve,  The,  (1919)  3  B.  and  C.P.C.  517.     §  421a,  p.  612. 
Emilia.     See  Johanna  Emilie. 
ErtelBieber  and  Co.  v.  Bio  Tinto  Co.,  [1918]  A.C.   260.     §  101, 

p.  156. 
Esposito  V.  Bowden,  (1857)  7  E.  and  B.  763.     §  101,  p.  156. 
Etta,  The,  (1864)  25  Fed.  Cases  No.  15,  p.  60.     §  91,  p.  133. 
Excliange,  The,  (1808)  Edwards  39.     §  390,  p.  538. 
Fanny,  The,  (1814)  1  Dod.  443.     §  185,  p.  263  ;  §  424,  p.  615. 
Felicity,  The,  (1819)  2  Dod.  381.     §  194,  p.  274  ;  §  431,  p.  620. 
Feniv,  The  (1915),  Z.I.,  ix.  p.  103  ;  A.J.,  x.  (1916),  p.  909.     §  102a, 

pp.  161,  165;  §  197,  p.  279. 
Ferdinand,  Ex-Tsar  of  Bulgaria,  Be,  [l92l]  1  Ch.  107.     §  102,  p.  157. 
Fisher,  Anthon  v.,  (1782)  2  Doug.  649  n.     §  195,  p.  277. 
Fletcher,  Blanche  v.,  (1779)  1  Doug.  251.     §  101,  p.  154. 
Foltina,  The,  (1814)  1  Dod.  450.     §  166,  p.  232. 
Fortuna,  The,  (1803)  5  C.  Rob.  27.     §  386,  p.  534. 
Fortuna,  The,  (1814)  1  Dod.  450.     §  184,  p.  262. 
Fox,  The,  (1811)  Edwards  311.     §  434,  p.  628. 
Franciska,  The,  (1855)  Spinks  287.     §  370,  p.  514  ;  §  380,  pp.  524, 

525;  §  381,  p.  526. 
Franklin,  The,  (1801)  3  C.  Rob.  217.     §  405,  p.  580. 
Frederick  Fill.,  The,  (1916)  2  B.  and  C.P.C.  395.     §  191,  p.  269  ; 

§  319,  p.  427. 


XX  TABLE   OF  CASES 

Frederick  Moltke,  The,  (1798)  1  C.  Rob.  86.     §  387,  p.  535. 
Frederico,  The  (1915),  B.G.,  xxii.  (1915),  Jurisprudence,  p.  17,  xxiv. 
(1917),  Jurisprudence,  p.  11.     §  408,  p.  590  ;  §  421a,  p.  612. 
Freudenberg,  Porter  v.,  [1915]  1  K.B.  857.     §  100a,  p.  151 ;  §  101, 

p.  154;  §  102,  p.  158. 
Freundschaft,  The,  (1819)  4  Wheaton  105.     §  90,  p.  129. 
Friendship,  The,   (1807)  6  C.    Eob.    420.     §  408,   p.   589 ;  §  412, 

p.  597. 
Fritz-SchuUz  Co.  v.  Faimes  Co.,   (1917)  164  N.Y.S.  454.     §  88a, 

p.  124. 
General  Hamiltm,  The,  (1805)  6  C.  Rob.  61.     §  91,  p.  131 ;  §  389, 

p.  537. 
Georgia,  The,  (1868)  7  Wall.  32  ;  Garner,  i.  §  139.     §  91,  p.  133. 
Ge&rgiana,  The,  (1814)  1  Dod.  397.     §  185,  p.  262. 
Gerasimo,  The,  (1857)  11  Moo.  P.C.  88.     §  371,  p.  514. 
Germania,  TJie,  (1915)   1  B.  and  C.P.C.   573;    (1917)   2  B.  and 

C.P.C.  365.     §  102a,  p.  162. 
Gist  V.  Masm,  (1786)  1  T.R.  84.     §  101,  p.  154. 
Glenroy,  The,  (1918)  3  B.  and  C.P.C.  161.     §  102,  p.  160. 
Glitra,   The  (1915),   Deutsche  Juristen  Zeitung,   p.  456.     §   194, 

p.  275. 
Goldberg,  ScUffenius  v.,  [1916]  1  K.B.  284.     §  100a,  p.  151. 
Goodrich  and  De  Forest  v.  Gordon,  (1818)   15  Johnson  6.     §  195, 

p.  277. 
Gordon,  Goodrich  and  De  Foi-est  v.,  (1818)   15  Johnson  6.     §  195, 

p.  277. 
Gutenfels,  The,  (1916)  2  B.  and  C.P.C.  36.     §  102,  p.  164. 
Habana,  The.     See  Paquette  Habana. 
Halan,  The,  (1916)  2  B.  and  C.P.C.  210,  479.     §  405,  p.  580; 

.§  406,  p.  581. 
Hall,  Maria  v.,  (1800)  2  B.  and  P.  236.     §  100a,  p.  152. 
Halsey  v.  Lowenfeld,  [1916]  2  K.B.  707.     §  101,  p.  156. 
Hamborn,  The,  (1917)  3  B.  and  C.P.C.  80,  379;  [1918]  P.   19; 

[1919]  A.C.  993.     §  89,  pp.  127,  128. 
Hanametal,  The,  (1914)  1  B.  and  C.P.C.  347.     §  410,  p.  595. 
Hanger  v.  Abbot,  (1867)  6  Wall.  532.     §  100a,  p.  152. 
Hardman,  In  the  matter  of  (1913),  A.J.,  vii.  (1913),  p.  879.     §  170, 

p.  242. 
Hardy,  Le  v.   Voltigeante,  La,  (1802)   1  Pistoye  et  Duverdy  321. 

§  90,  p.  130. 
Harrnmy,  The,  (1800)  2  C.  Rob.  322.     §88,  p.  120. 
Hart,  The,  (1865)  3  Wall.  559.     §  385,  p.  532  ;  §  400,  p.  567. 


TABLE   OF   CASES  XXI 

HeJen,  The,  (1865)  L.R.  1  A.  and  E.  1.     §  398,  p.  564. 

Ildlfeld  V.  liechniter  (19U),  The  Times,  Dec.  11,  19U.     §  100a, 

p.  152. 
Hellig  Olav,  The,  (1918)  3  B.  and  C.P.C.  258.     §  395,  p.  557. 
Hendricks,  Be  mUz  v.,  (1824)  9  Moo.  586.     §  352,  p.  485. 
Henkle   v.  London   ExcJmngc  Assuran/^e    Co.,   (1749)    1    Ves.    320. 

§  101,  p.  154. 
Henning,  Hohhs  v.,  (1864)  17  C.B.  (N.S.)  791.     §  402,  p.  571. 
Hcnrick  and  Maria,  The,  (1799)  1  C.  Rob.  146.     §  375,  p.  518. 
Heirera  v.   United  States,  (1912)  222  U.S.  558.     §  184,  p.  262; 

§  227,  p.  316. 
Hillerod,  The,  (1917)  3  B.  and  C.P.C.  48.     §  406,  p.  582. 
Hipsang,  The  (1907),  Hurst  and  Bray,  i.  p.  21.     §  431,  p.  621. 
Hh<  Majesty's  Procvrator-General ;  American  Transatlantic  Company, 

Owners  of  the  Steamships  Kankakee,  Hocking,  and   Genesee  v., 

The  Times,  July  24,  1920.     ^  89,  p.  127. 
Hobbs  V.  Henning,  (1864)  17  C.B.  (N.S.)  791.     ,^  402,  p.  571. 
Hoffnung,  The,  (1805)  6  C.  Bob.  112.     §  184,  p.  529. 
Hoop,  The,  (1799)  1  C.  Rob.   196.     §  100a,  pp.  150,  151  ;  §  195, 

p.  277. 
Hope,  The,  (1808)  6  C.  Rob.  463  n.     §  412,  p.  597. 
Hunter,  The,  (1815)  1  Dod.  480.     §  427,  p.  617. 
Hurtige  Hane,  The,  (1799)  2  C.  Rob.  124.     §  386,  p.  534. 
HcJuma,  The  (1907),  Hurst  and  Bray,  i.  p.  226.     §  431,  p.  621. 
Imina,  The,  (1800)  3  C.  Rob.  167.     §  399,  p.  565  ;  §  402,  p.  571. 
Immanuel,  The,  (1799)  2  C.  Rob.  186.     §  289,  p.  389. 
Indemnity  Mutual  Marine  Assurance  Company,   Yangtsze  Insurance 

Associatim  v.,  [1908]  1  K.B.  910  ;  [1908]  2  K.B.  504.     §  407, 

p.  586. 
Indian  Chief,  The,  (1801)  3  C.  Rob.  12.     §  90,  p.  129. 
Indian  Prince,  The  (1916),  A.J.,  x.  (1916),  pp.  930-935.     §  194, 

p.  276. 
Industrie,   The  (1905),   Takahashi,   p.    732;    Hurst  and   Bray,   ii. 

p.  323.     §  410,  p.  595. 
James  Cook,  The,  (1810)  Edwards  261.     §  385,  p.  531. 
Jan  Frederick,  The,  (1804)  5  C.  Rob.   128.     ^  91,  p.   131  ;  §  92, 

p.  134. 
Janso7i  V.  Driefontein  Consolidated  Mines,  [1902]  A.C.  484,  at  p.  497. 

§88a,  p.  123;  §  100a,  p.  152. 
Jeanne,  The,  (1916)  2  B.  and  C.P.C.  227.     §  177,  p.  250. 
Jemmy,  The,  (1801)  4  C.  Rob.  31.     .§  91,  p.  131. 
Joan,  Le,  (1870)  Barboux  101.     .^  90,  p.  130. 


XXll  TABLE   OF   CASES 

Johanna  Emilie,  The,  (1854)  Spiuks,  12.     §  88,  p.  120. 

Jmge  Klassina,  The,  (1803)  5  C.  Rob.  297.     §  90,  p.  129. 

Jonge  Margaretha,  The,  (1799)  1  C.  Eob.  189.     §  394,  p.  553. 

Jcmge  Pieter,  The,  (1801)  4  C.  Rob.  79.     §  101,  p.  155. 

Juno,  The,  (1799)  2  C.  Rob.  116.     §  387,  p.  535. 

Karberg  (Jrnhold)  and  Co.  v.  Blythe,  Green,  Jourdain  and  Co.,  [1916] 

1  K.B.  495,  at  p.  505.     §  101,  p.  156. 
Kim,  The,  [1915]  P.  215  ;  1  B.  and  C.P.C.  405.     §  403a,  p.  574. 
Knight  Commander,  The  (1905),  Hurst  and  Bray,  i.  pp.  54,  357. 

§431,  p.  621. 
Kmo-shing,  The  (1894),  Holland,  Studies,  pp.  126-128.     §  89,  p.  125  ; 

§  348,  p.  471. 
Kronprins  Gustav,  The,  (1919)  3  B.  and  C.P.C.  432.     §  395,  p.  557. 
Kronprinsessan  Margareta,  The,  (1917)  2  B.  and  C.P.C.  409.     §  92, 

p.  135;  §405,  p.  580. 
Kronprimessin  Cecilie,  The,  (1919)  3  B.  and  C.P.C.   363.     §  102a, 

p.  164. 
Kronprinzessin  Victoria,  The,  (1918)  3  B.  and  C.P.C.  247.     §  395, 

p.  557  ;  §  403a,  p.  575  ;  §  434,  p.  628. 
La  Gloire,  The,  (1804)  5  C.  Rob.  192.     §  225,  p.  313. 
La  Bosina,  The,  (1800)  2  C.  Rob.  372.     §  225,  p.  313. 
La  Saniissima    Trinidad,   The,   (1822)    7    Wheaton  340.      §   334, 

p.  452. 
Laura-Louise,  Le,  (1871)  Barboux  119.     §  90,  p.  130. 
Lavabre  v.  IFilson,  (1779)  1  Doug.  284.     §  101,  p.  154. 
Leonora,  The,  (1918)  3  B.  and  C.P.C.   181,  385.     .§  319,  pp.  427, 

428. 
Leucade,  The,  (1855)  Spinks  217.     §  194,  p.  274  ;  §  431,  p.  620. 
Lilla,  The,  (1862)  2  Sprague  177.     §  362,  p.  501. 
Lisette,  The,  (1806)  6  C.  Rob.  390.     §  399,  p.  565. 
Loekken,  The,  (1918)  34  T.L.R.  594.     §  71,  p.  93. 
Lf/ndon  and  Frarincial  Marine  Insurance  Co.,  Seymour  v.,  (1872)  41 

L.J.C.P.  193.     §  402,  p.  571. 
London  E:rchange  Assurance   Co.,   Henkle  v.,   (1749)   1    Ves.   320. 

§  101,  p.  154. 
Lorenzo,  The,  (1914)  1  B.  and  C.P.C.  226.     §  406,  p.  581. 
Louisiana,  The,  (1918)  3  B.  and  C.P.C.  60.     §  395,  p.  557. 
Louenfeld,  Hahey  v.,  [1916]  2  K.B.  707.     §  101,  p.  156. 
Lutzm,  The,  (1917)  3  B.  and  C.P.C.  37.     §  90,  p.  129. 
Lym:h,  R.  v.,  [1903]  1  K.B.  444.     §  101,  p.  154. 
Madiscm,  The,  (1810)  Edwards  224.     §  409,  p.  592. 
Madcmna  delle  Gracie,  The,  (1802)  4  C.  Rob.  195.     §  101,  p.  155. 


TABLE   OF   CASES  XXlll 

Maracaiho,  The,  (1916)  2  B.  and  C.P.C.  294.     $5  40G,  p.  582. 

Margaret,  The,  (1810)  1  Acton  333.     §  404,  i>.  577. 

Mai-ia,  The,  (1799)  1  C.  Rob.  340.     i^  422,  p.  613  ;  §  423,  p.  613  ; 

§  425,  p.  615;  H34,  p.  628. 
Maria,  The,  (1805)  6  C.  Rob.  201.     §  390,  p.  539. 
Maria,  The,  (1915)  1  B.  and  C.P.C.  259.     §  187,  p.  266. 
Maria,  The  (1915),   Z.F.,   ix.    (1916),   p.    408;   A.J.,   x.   (1916), 

p.  927.     ^  395,  p.  559. 
Maria  v.  Hall,  (1800)  2  B.  and  P.  236.     §  100a,  p.  152. 
Marie  Glceser,  The,  (1914)    1   B.  and  C.P.C.  38;    [l914]  P.  218. 

§  89,  p.  124 ;  ^  102a,  p.  165  ;  ^^  197,  p.  279. 
Marie  LemJmrdt,  The,  [l92l]  P.  1.     §  102a,  p.  164. 
Marten,  Andersen  v.,  [1907]  2  K.B.  248  ;  [1908]  A.C.  334.     J5  435, 

p.  630. 
Maskinonge  Steamship  Co.,  Dominion  Coal  Co.  v.,  (1916)  33  T.L.R. 

132,  340 ;  (1917)  34  T.L.R.  212.     §  70,  p.  92. 
Mascm,  Gist  v.,  (1786)  1  T.R.  84.     §  101,  p.  154. 
Ment(yr,  The,  (1799)  1  C.  Rob.  179.     §  272,  p.  367. 
Menzale,    The   (1912),    E.G.,    xxi.    (1914),    pp.    281-290.     §    177, 

p.  250. 
Mercurius,  The,  (1798)  1  C.  Rob.  80.     §  390,  p.  538. 
Metear,  The  (1866),  Wharton  iii.  §  396,  p.  561  ;  Balch,  201,  202. 

§  334,  p.  452. 
Minerva,  The,  (1807)  6  C.  Rob.  396.     §  91,  p.  133. 
Miramichi,  The,  (1914)  1  B.  and  C.P.C.  137.     §  102,  p.  160. 
Moffitt;  Thurn  icnd  Taxis,  Princess  v.,  [1915]  1  Ch.  58.     §  100a, 

p.  151. 
Montara,   The  (1905),    Takahashi,   p.    633 ;    Hurst  and   Bray,   ii. 

p.  403.     §89,  p.  126;  §436,  p.  631. 
M&rshead,  Antoine  v.  (1815)  6  Taunt.  237.     §  101,  p.  155. 
Moss  V.  Dmiohoe,  (1916)  32  T.L.R.  343.     §  101,  p.  155. 
Mi}we,  The,  (1914)    1   B.  and  C.P.C.  60;  [1915]  P.   1,  at  p.   15. 

§  100a,  p.  151  ;  §  102a,  p.  161. 
Mukden,  The  (1904),  Hurst  and  Bray,  ii.  p.  12.     §  181,  p.  257; 

§  320,  p.  431. 
NaiKy,  The,  (1800)  3  C.  Rob.  122.     §  404,  p.  577. 
Nancy,  The,  (1809)  1  Acton  63.     §  380,  p.  526. 
Natal,  Attwney-General  far;  De  Jager  v.,  [1907]  A.C.  326.     §  100, 

p.  149. 
Neptunus,   The,  (1799)   2  C.  Rob.    110;    (1800)  3  C.  Rob.   173. 

§  384,  p.  529. 
Nereide,  The,  (1815)  9  Cranch  388.     §  185,  p.  263  ;  §  424,  p.  615. 


XXIV  TABLE   OF   CASES 

Neutralitet,  The,  (1801)  3  C.  Rob.  295.     §  405,  p.  580. 
Neutralitet,  The,  (1805)  6  C.  Rob.  30.     ^  386,  p.  534. 
NeuHi,  The  (1912),  B.G.,  xxi.  (1914),  pp.  281-290.     §  177,  p.  250. 
Newhaven,  Town  of ;  Society  for  the  Propagation  of  the  Gospel  v., 

(1823)  8  Wheaton  464.     §  99,  p.  146. 
Nicolaiis,  Le,  (1871)  Barboux  108.     ?;  90,  p.  130. 
Nigretia,   The  (1905),    Hurst   and   Bray,    ii.   p.    201.     §   408,    p. 

589. 
Ningchow,  The,  (1915)  1  B.  and  C.P.C.  288 ;  [1916]  P.  221.     §  90, 

p.  128. 
Noordam,  TJie,  (1918)  3  B.  and  C.P.C.  317.     §  395,  p.  557. 
Nooniam  (No.  2),  Tlie,  (1919)  3  B.  and  C.P.C.  488;  [1920]  A.C. 

904.     §  191,  p.  269. 
Odessa,   The,   (1914)  1   B.  and  C.P.C.  163,  554.      §  90,  p.   128; 

§  197,  p.  279  ;  8  435,  p.  630. 
Oldhamia,  TJie  (1905),  Hurst  and  Bray,  i.  p.  145.     §  431,  p.  621. 
Olinde  Rodrigues,  The,  (1898)  174  U.S.  510.     §  380,  p.  526. 
Ophelia,  The,  (1915)  1  B.  and  C.P.C.  210;    2  B.  and  C.P.C.  150. 

§  206,  p.  287. 
Orel,   The  (1905),   Takahashi,   pp.   620-625;    Hurst  and  Bray,  ii. 

p.  354.     §  206,  p.  287. 
Oriental,  The,  (1915)  1  B.  and  C.P.C.  575.     §  102a,  p.  162. 
Orozembo,  The,  (1807)  6  C.  Rob.  430.     §  408,  p.  588. 
Orteric,  The,  [l920]  A.C.  724.     §  92,  p.  135. 
Paix,  La,  (1803)  1  Pistoye  et  Duverdy  486.     §  90,  p.  130. 
Faldat,  The,  (1915)  1  B  and  C.P.C.  515.     §  186,  p.  264. 
Palm  Branch,  The,  (1916)  2  B.  and  C.P.C.  281  ;  3  B.  and  C.P.C. 

241.     §  92,  p.  135. 
Panaghia  Bhomha,  The,  (1858)  12  Moo.  P.C.  168.     §  390,  p.  538. 
Panariellos,  The,  (1915)  1  B.  and  C.P.C.  195  ;  2  B.  and  C.P.C.  47. 

§  101,  p.  153  ;  §  192,  p.  271. 
Paquette  Habana,  Tlie,  (1899)  175  U.S.  677.     §  187,  p.  265. 
Parana,  The,  (1919)  3  B.  and  C.P.C.  482.     §  405,  p.  580. 
Parchim,  The,  (1915)  1  B.  and  C.P.C.  579  ;  (1917)  2  B.  and  C.P.C. 

489.     §  92,  p.  135. 
Pass  of  Balmaha,  The  (1915),  Garner,  i.  §  136  ;  Huberich  and  King, 

p.  27.     §91,  p.  133. 
Pellworm,  The,  [l920]  P.  347.     §  181,  p.  257  ;  §  362,  p.  500. 
Perkeo,  The,  (1914)  1  B.  and  C.P.C.  136.     §  102a,  p.  165. 
Peterhoff,  The,  (1866)  5  Wall.  49.     §  373,  p.  515;  §  385,  p.  532; 

§400,  p.  568;  §  401,  p.  569. 
Phoenix,  T/i^,  (1803)  5  C.  Rob.  41.     §  90,  p.  129. 


TABLE    OF    CASES  XXV 

Pimlos,  The,  (1915)  1   R  and  C.P.C.  248;  (1916)  2  B.  and  C.P.C. 

146.     >5  102a,  p.  162. 
Planche  v.  Iletcher,  (1779)  1  Doug.  251.     §  101,  p.  154. 
Polka,  The,  (1854)  Spinks  57.     §  184,  p.  262. 
Poheaih,  The,  [1916]  P.  117.     S  88o,  p.  123. 
Pmtoporos,  The,  (1915)    1    B.  and  C.P.C.  371  ;    (1916)   2  B.  and 

C.P.C.  87.     8  408,  p.  590  ;  §  432,  p.  625. 
Pama,  The,  (1915)  1  B.  and  C.P.C.  275.     §  88a,  p.  123. 
Porter  v.  Freudenberg,  [1915]  1  K.B.  857.     §  100a,  p.  151  ;  §  101, 

p.  154;  §  102a,  p.  158. 
P(yrtland,  The,  (1800)  3  C.  Rob.  41.     §  90,  p.  129. 
Porta,  The  (1915),  E.G.,  xxiii.  (1916),  Jurisprudence,  p.  66  ;  Garner, 

i.  §  113.     §  90,  p.  128  ;  §  102a,  p.  165. 
PosUrio,  The,  (1917)  3  B.  and  C.P.C.  275.     §  405,  p.  580. 
Postilion,  The,  (1779)  Hay  and  Marr.  245.     §  88,  p.  121  ;    §  90, 

p.  129. 
PHmavera,   The  (1917),   Clunet,  xliv.  p.   1804.     §   102a,  p.   162; 

§  181,  p.  257. 
PHmus,  The,  (1854)  Spinks  48.     §  89,  p.  127. 
Prinsesse  Marie,  The  (1908),  Hurst  and  Bray,  i.  p.  276.     §  431, 

p.  621. 
Prinz  Adalbert,  The,  (1916)  2  B.  and  C.P.C.  70;  (1917)  3  B.  and 

C.P.C.  70.     §  102a,  p.  164. 
Proton,  The,  (1918)  3  B.  and  C.P.C.   125.     §  89,  p.  127;  §  434, 

p.  628. 
Quang-nam,  The  (1905),  Takahashi,  p.  735  ;   Hurst  and  Bray,  ii. 

p.  343.     S  410,  p.  595. 
R.  V.  Lynch,  [1903]  1  K.B.  444.     §  101,  p.  154. 
Raimes  Co.,  Fritz-Schultz  Co.  v.,  (1917)   164  N.Y.S.  454.     §  88a, 

p.  124. 
Rannveig,  The,  [l920]  P.  177.     §  436,  p.  632. 
Rapid,  The,  (1810)  Edwards  228.     §  409,  p.  593. 
Rechnitzer,  Hellfeld  v.,  (1914),  The  Times,  Dec.  11,  1914.     §  100a, 

p.  152. 
Recovery,  The,  (1807)  6  C.  Eob.  341.     §  434,  p.  628. 
Richmmd,  The,  (1804)  5  C.  Rob.  325.     §  397,  p.  562. 
Rigende  Jacob,  The,  (1798)  1  C.  Rob.  89.     §  405,  p.  580. 
Rijn,  The,  (1917)  2  B.  and  C.P.C.  507.     §  395,  p.  557. 
Rio  Tinto  Co.,  Ertel  Bieber  and  Co.  v.,  [1918]  A.C.  260.     §  101, 

p.  156. 
Robinson  and  Co.  v.  Continental  Insurance  Co.,  [1915]  1  K.B.  155,  at 
p.  159.     §  100a,  p.  152. 


XXVI  TABLE    OF    CASES 

Rodriguez  v.  Speyer  Bros.,  [1919]  A.C.  59.     §  100a,  p.  152. 

Boland,  The,  (1915)  1  B.  and  C.P.C.  188.     ^  90,  p.  128. 

Bolla,  The,  (1807)  6  C.  Kob.  364.     §  370,  p.  5U  ;  §  375,  p.  518. 

Bose  in  Bloom,  The,  (1811)  1  Dod.  55.     §  387,  p.  536. 

Bmimanian,  The,  (1914)   1  B.  and  C.P.C.  75,  536.     §  102,  p.  160  ; 

§  177,  p.  250. 
Sabah,  The  (1917),  B.G.,  xxi.  pp.  261-265.     §  102a,  p.  164. 
St.  Kilda,  The  (1908),  Hurst  and  Bray,  i.   p.   188.     §  394,  p.  555  ; 

§  431,  p.  621. 
-S'^.  Nicholas,  The,  (1816)  1  Wheaton  417.     §  428,  p.  617. 
St.  Tudno,  The,  (1916)  2  B.  and  C.P.C.  273  ;  [1916]  P.  291.     §  89, 

p.  127. 
Samuel,  The,  (1802)  4  C.  Rob.  284  n.     §  101,  p.  155. 
Sarah,  The,  (1801)  3  C.  Rob.  330.     §  428,  p.  617. 
Sarah  Christina,  The,  (1799)  1  C.  Rob.  237.     §  405,  p.  580. 
Schaffenius  v.  Goldberg,  [1916]  1  K.B.  284.     §  100a,  p.  151. 
Scheiber  Brewing  Co.,   Stumpf  v.,    (1917)    242    Fed.    80.     §  88a, 

p.  124. 
Schlesien,  The,  (1914)  1  B.  and  C.P.C.  13.     §  197,  p.  279. 
Sechs  Geschmstern,  The,  (1801)  4  C.  Rob.  100.     §  91,  p.  131. 
Seymour  v.  London  and  Provincial  Marine  Insurance  Co.,  (1872)  41 

L.J.C.P.  193.     !^  402,  p.  571. 
Sheffield,  The  (1912),  B.C.,  xxi.  (1914),  pp.  281-290.     §  177,  p.  250. 
Shepeler  v.  Durant,  (1854)  14  C.B.  582.     §  100a,  p.  152. 
Shepherdess,  The,  (1804)  5  C.  Rob.  262.     §  386,  p.  534. 
Ships  taken  at  Genoa,  The,  (1803)  4  C.  Rob.  388.     §  184,  p.  262  ; 

§  227,  p.  316. 
Sigurd  (No.  2),  The,  (1917)  3  B.  and  C.P.C.  87.     §  421,  p.  611. 
Simla,  The,  (1915)  1  B.  and  C.P.C.  281.     §  191,  p.  269. 
Sir  William  Peel,  The,  (1866)  5  Wall.  517.     ^  362,  p.  501. 
Socidt6  Conserve  Lenzhourg  (1915),  Clunet,   xlii.  p.   1164.     §  88a, 

p.  124. 
Society  for  the  Propagation  of  the  Gospel  v.  Toion  of  Newhaven,  (1823) 

8  Wheaton  464.     §  99,  p.  146. 
Sorfareren,  TJie,  (1915)  1  B.  and  C.P.C.  580.     §  406,  p.  582. 
Sauthfield,  The,  (1915)  1  B.  and  C.P.C.  332.     §  92,  p.  134. 
Spes  and  Irene,  The,  (1804)  5  C.  Rob.  76.     §  386,  p.  534. 
Speyer  Bros.,  Bodriguez  v.,  [1919]  A.C.  59.     §  100a,  p.  152. 
Springbok,   The,  (1866)  5  Wall.   1.     §  385,  p.  532  ;  §  390,  p.  539  ; 

§  400,  p.  568  ;  §  401,  p.  569. 
Stephen  Hart,  The,  (1865)  3  Wall.  559.    §  385,  p.  532  ;  §  400,  p.  567. 
Stert,  TIte,  (1801)  4  C.  Rob.  65.     §  388,  p.  536. 


TABLE    OF    CASES  XXVll 

Stevenson    (Hugh)    and   Sons    v.    Akfiengesellschaft  fiir  Cartonnagcn 

Industne,  [1917]  1  K.B.  842  ;  [1918]  A.C.  239.    §  101,  p.  156  ; 

§  102,  p.  158. 
Stigsfad,  The,  (1916)  2  B.   and  C.P.C.   179,  affirmed  by  the  Privy 

Council,  3  B.  and  C.P.C.  347.     §  319,  p.  427. 
Stumpfw.  Scheiber  Brewing  Co.,  (1917)  242  Fed.  80.     8  88a,  p.  124. 
Sudmark,  The,  (1917)  2  B.  and  C.P.C.  473.     §  434,  p.  628. 
Sutherland,  Mary,  Duchess  of,  In  re,  (1915)  31  T.L.R.  394.     §  100a, 

p.  151. 
Suttm  V.  Sutton,  (1830)  1  Russ.  and  M.  663.     §  99,  p.  146. 
Smnfos,  The,  (1919)  3  B.  and  C.P.C.  470.     §  432,  p.  625. 
Svithiod,  Tlie,  [1920]  A.C.  718.     §  408,  p.  590. 
Ten  Bales  of  Silk  at  Port  Said,  The,  (1916)  2  B.  and  C.P.C.  247. 

§  102,  p.  160. 
Tetartos,  The  (1906),  Hurst  and  Bray,  i.  p.  166.     §  431,  p.  621. 
Thalia,  Le,  (1871)  Barboiix  116.     §  90,  p.  130. 
Thalia,  The  (1905),  Hurst  and  Bray,  ii.  p.  116.     §  102,  p.  160. 
Thea,  The  (1904),  Hurst  and  Bray,  i.  p.  96.     §  89,  p.  126  ;  §  431, 

p.  621. 
Thirty  Hogsheads  of  Sugar  v.  Boyle,   (Bcnfzen  v.  Boyle),   (1815)   9 

Cranch  191.     §  90,  p.  129. 
Thor,  The,  (1914)  1  B.  and  C.P.C.  229.     §  410,  p.  595. 
Thum  und  Taxis,  Princess  v.  AlojgUtt,  [1915]    1  Ch.  58.     §  100a, 

p.  151. 
Tinos,  The  (1917),  B.G.,  xxv.  Jurisprudence,  p.  3.     §  71,  p.  95  ; 

§  181,  p.  257  ;  §  320,  p.  431. 
Tommi,  The,  (1914)  1  B.  and  C.P.C.  16  ;  [1914]  P.  251.     §  91,  p. 

132. 
Trende  Sostre,  The,  (1800)  cited  in  The  Lisette,  (1806)  6  C.  Rob. 

390  n.     §  399,  p.  565. 
Turul,  The,  (1919)  3  B.  and  C.P.C.  356.     §  102,  p.  164. 
Twee  Gehroeders,  The,  (1800)  3  C.  Rob.  162.     §  362,  p.  499. 
United  States,  The,  (1916)   2  B.  and  C.P.C.   390,   525.     §  92,  p. 

135  ;  §319,  p.  427. 
United  States,  Diaz  v.,  (1912)  222  U.S.  574.     §  184,  p.  262;  § 

227,  p.  316. 
United  States,  Herrera  v.,  (1912)  222  U.S.   558.     §  184,  p.  262; 

§  227,  p.  316. 
U)-na,  The,  [l920]  A.C.  899.     §  395,  p.  557. 
Valeria,  The,  [1920]  P.  81  ;  37  T.L.R.  337.     §  181,  p.  257  ;  §362, 

p.  500. 
Fasilios,  The  (1912),  Garner,  i.  §  129  n.     §  91,  p.  132. 


XXviii  TABLE    OF    CASES 

Venus,  The,  (1803)  4  C.  Rob.  355.     §  225,  p.  313. 

Venus,  The,  (ISU)  8  Cranch  253.     §  88,  p.  121  ;  §  90,  p.  129. 

Vesta,  The,  [1920]  P.  385.     §  177,  p.  250. 

Vigilantia,  The,  (1798)  1  C.  Rob.  1.     §  91,  p.  131. 

VoUigeante,  La;  Hardy,  Le  v.,  (1802)  1  Pistoye  et  Duverdy  321. 

§  90,  p.  130. 
Vrouw  Judith,  TJie,  (1799)  1  C.  Rob.  150.     §  376,  p.  520 ;  §  384, 

p.  529  ;  §  387,  p.  535. 
Vrow  Elizabeth,  The,  (1803)  5  C.  Rob.  2,  at  p.  4.     §  89,  p.  126. 
Vrow  Margaretha,  The,  (1799)  1  C.  Rob.  336.     §  91,  p.  131. 
War  Onskan,  TJie,  (1799)  2  C.  Rob.  299.     §  432,  p.  625. 
Welvaart  van  Fillaw,  The,  (1799)  2  C.  Rob.  128.     §  389,  p.  537. 
miliam,  The,  (1806)  5  C.  Rob.  385.     §  400,  p.  567. 
milkommen,  The,  (1917)  24  Rev.  Gen.  Jurispr.  15.     §  89,  p.  127. 
mism.  In  re,  (1915)  84  L.J.K.B.  1893.     §  100a,  p.  152. 
Wilson,  Lavahre  v.,  (1779)  1  Doug.  284.     §  101,  p.  154. 
Yangtsze  Insurance  Association  v.  Indemnity  Mutual  Marine  Assurance 

Company,  [1908]  1  K.B.  910;  [1908]  2  K.B.  504.     §407, 

p.  586. 
Young  Jacob  and  Jolmnna,   The,   (1798)    1   C.  Rob.   20.      §  187, 

p.  265. 
Zambesi,  The,  (1914)  1  B.  and  C.P.C.  358.     §410,  p.  595. 
Zarmra,  The,  (1916)  2  B.  and  C.P.C.  1.     §  192,  p.  272  ;  §  365,  p. 

509  ;  §  421a,  p.  612  ;  §  434,  p.  628. 


CONTENTS 

OF 

THE    SECOND    VOLUME 
PART  I 

SETTLEMENT  OF  STATE  DIFFERENCES 
CHAPTER    I 

AMICABLE    SETTLEMENT   OF   STATE    DIFFERENCES 
I.  State  Differences  and  llieir  Amicable  SeUlemcnt  in  General 

SECT.  PAOK 

1.  Legal  and  Political  International  Differences   ....  3 

2.  International  Law  not  exclusively  concerned  with  Legal  Differ- 

ences .........  4 

3.  Amicable  in  contradistinction  to  Compulsive  Settlement  of  Dif- 

ferences       .........  5 

II.  Negotiation 

4.  In  what  Negotiation  consists  ......  6 

5.  International  Commissions  of  Inquiry    .....  7 

6.  Effect  of  Negotiation 10 

III.   Good  Offices  and  Mediation 

7.  Occasions  for  Good  Offices  and  Mediation        .  .  .  .  11 

8.  Right  and  Duty  of  offering,  requesting,  and  rendering  Good 

Offices  and  Mediation    .  .  .  .  .  .  .  12 

9.  Good  Offices  in  contradistinction  to  Mediation  .  .  .  12 

10.  Good  Offices  and  Mediation  according  to  the  Hague  Arbitration 

Convention  ........  13 

11.  Value  of  Good  Offices  and  Mediation      .....  16 

IV.  Arbitration 

12.  Conception  of  Arbitration     .......  17 

13.  Treaty  of  Arbitration  ........  17 

14.  Who  is  to  arbitrate  ? 18 

15.  On  what  Principles  Arbitrators  proceed  and  decide  .          .  19 

16.  Binding  Force  of  Arbitral  Verdict  .          .          .          .          .  19 

17.  \Vliat  Differences  can  be  decided  by  Arbitration      .  .          .  21 
17a.  Arbitration  under  the  Covenant  of  the  League  of  Nations  .  23 

18.  Value  of  Arbitration     ........  24 


XXX 


CONTENTS   OF 


V.  Arbitration  according  to  the  Hague  Convention 

SBCT. 

19.  Arbitral  Justice  in  general    .  .  .  .  • 

20.  Arbitration  Treaty  and  Appointment  of  Arbitratoi-s 

21.  Procedure  of,  and  before,  the  Arbitral  Tribunal 

22.  Arbitral  Award   .... 

23.  Binding  Force  of  Awards 

24.  Award  binding  upon  Parties  only 

25.  Costs  of  Arbitration     . 
25a.  Arbitration  by  Summary  Procedure 


VI.  The  League  of  Nations  and  State  Differences 

256.  The  league  of  Nations  as  a  Factor  in  State  Differences 

25c.  The  Duties  of  the  League  itself    ...... 

25d.  The  Duty  of  Members  involved  in  a  Dispute  :   Inquiry  by  the 
Covuicil         ....••••• 

25e.  Inquiry  by  the  Assemblj'     ....... 

25/.  The  Proposed  International  Court  of  Justice 
25gr.  Disputes  in  which  non-Members  are  involved 


PAOB 

26 
28 
29 
32 
32 
33 
33 
33 


34 
35 

35 
37 
37 
38 


CHAPTEK   II 

COMPULSIVE    SETTLEMENT   OF   STATE   DIFFERENCES 

I.  On  Compulsive  Means  of  Settlement  oj  State  Differences  in  General 

26.  Conception  and  Kinds  of  Compulsive  Means  of  Settlement        .  39 

27.  Compulsive  Means  in  contradistinction  to  War         ...  40 

28.  Compulsive  Means  in  contradistinction  to  an  Ultimatum  and  De- 

monstrations        ........  41 


II.  Retorsion 

29.  Conception  and  Character  of  Retorsion 

30.  Retorsion,  when  justified 

31.  Retorsion,  how  exercised 

32.  Value  of  Retorsion       .  .  .  . 


42 
43 
43 
43 


III.  Reprisals 

33.  Conception  of  Reprisals  in  contradistinction  to  Retorsion 

34.  Reprisals  admissible  for  all  International  Delinquencies    . 

35.  Reprisals  admissible  for  International  Delinquencies  only 

36.  Reprisals,  by  whom  performed      ...... 

37.  Objects  of  Reprisals     ........ 

38.  Positive  and  Negative  Reprisals    ...... 

39.  Reprisals  must  be  proportionate    .  .  .  .  • 

40.  Embargo    .......••• 

41.  Reprisals  to  be  preceded  by  Negotiations  and  to  be  stopped 

when  Reparation  is  made        ...... 

42.  Reprisals  during  Peace  in  contradistinction  to  Reprisals  during 

War 

43.  Value  of  Reprisals        ........ 


44 
45 
46 
47 
48 
49 
50 
50 

61 

52 
52 


THE   SECOND  VOLUME 


XXXI 


IV.  Pacific  Blockade 

8KCT. 

44.  Development  of  Practice  of  Pacific  Blockade 

45.  Admissibility  of  Pacific  Blockade 

46.  Pacific  Blockade  and  V'esscls  of  third  States  . 

47.  Pacific  Blockade  and  Ves-sols  of  the  Block£idod  State 

48.  Manner  of  Pacific  Blockade  ..... 

49.  Value  of  Pacific  Blockade     ..... 


PAOC 

63 
56 
56 
67 
57 
68 


V.  Intervention 

50.  Intervention  in  contradistinction  to  Participation  in  a  Difference  58 

61.  Mode  of  Intervention  ........  69 

52.  Time  of  Intervention   ........  60 


VT.  Economic  Boycott 
52a.  The  so-called  Economic  Boycott 


61 


PART  II 

WAR 
CHAPTER    I 


ON   WAR   IN   GENERAL 

I.  Characteristics  of  War 

53.  War  no  Illegality 65 

54.  Conception  of  War       ........  67 

55.  War  a  Contention         ........  67 

56.  War  a  Contention  between  States  .....  68 

57.  War  a  Contention  between  States  through  Armed  Forces  .  69 
57o.  Recent  Developments  affecting  the  Distinction  between  Armed 

Forces  and  CiviUans      .......  73 

68.  War  a  Contention  between  States  for  the  purpose  of  overpower- 
ing each  other       ........  74 

59.  Civil  War 75 

60.  Guerilla  War 76 


II.  Causes,  Kinds,  and  Ends  of  War 

61.  Rules  of  Warfare  independent  of  Causes  of  War 

62.  Causes  of  War     ...... 

63.  Just  Causes  of  War      ..... 

64.  Causes  in  contradistinction  to  Pretexts  for  War 

65.  Different  Kinds  of  War         .... 

66.  Ends  of  War 

VOL.   II.  C 


79 
79 
81 

82 
82 
83 


XXXll 


CONTENTS   OF 


III.   The  Laws  of  War 
sKcr. 

67.  Origin  of  the  Laws  of  War    ..... 

68.  The  most  important  Developments  of  the  Laws  of  War 

69.  Binding  Force  of  the  Laws  of  War 


PAGE 

84 
86 
90 


IV.  The  Region  of  War 

70.  Region  of  War  in  contradistinction  to  Theatre  of  War     .  .  92 

7L  Particular  Region  of  every  War    ......  93 

72.  Exclusion  from  Region  of  War  through  Neutralisation     .  .  9G 

73.  Asserted  Exclusion  of  the  Baltic  Sea  from  tlie  Region  of  War  .  98 

V.  The  Belligerents 

74.  Qualification  to  become  a  Belligerent  (facultas  bellandi)    .  .  99 

75.  Possibility  in  contradistinction   to   Qualification  to   become  a 

Belligerent  .  .  .  .  .  .  .  .  .100 

76.  Insurgents  as  a  Belligerent  Power  .  .  .  .  .101 
76o.  The  Case  of  the  Czecho -Slovaks  ......        101 

77.  Principal  and  Accessory  Belligerent  Parties    ....        102 


VI.  The  Armed  Forces  of  the  Belligerenta 

78.  Regular  Armies  and  Navies 

79.  Non-Combatant  Members  of  Armed  Forces 

80.  Irregular  Forces 

81.  Levies  en  masse  . 

82.  Barbarous  Forces 

83.  Privateers  .... 

84.  Converted  Merchantmen 

85.  The  Crews  of  Merchantmen  . 

86.  Deserters  and  Traitors 


103 
104 
105 
106 
107 
109 
109 
113 
115 


VII.  Enemy  Character 

87.  On  Enemy  Character  in  general    . 

88.  Enemy  Character  of  Individuals   . 
88a.  Enemy  Character  of  Corporations 

89.  Enemy  Character  of  Vessels 

90.  Enemy  Character  of  Goods  . 

91.  Transfer  of  Enemy  Vessels   . 

92.  Transfer  of  Goods  on  Enemy  Vessels 


116 
118 
122 
124 
128 
130 
133 


CHAPTER   II 


THE    OUTBREAK   OF   WAR 
I.  Commencement  of  War 


93.  Commencement  of  War  in  general 

94.  Declaration  of  War    . 

95.  Ultimatum         .... 

96.  Initiative  hostile  Acts  of  War 


136 
138 
140 
141 


THE    SECOND   VOLUME 


xxxm 


II.    Effects  oj  the  Outbreak  of  War 

8KCT.  PAOK 

97.  Gonoral  EfTocta  of  the  Outbreak  of  War        .  .  .  .143 

98.  Rupture  of  J)ipIoinatic  Intorcourse  and  Consular  Activity       .        144 

99.  Cancellation  of  Treaties       .......        145 

100.  Precarious  Position  of  Belligerents'  Subjects  on  Enemy  Territory       147 
100a.  Persona  standi  171  judicio  on  Enemy 'YoTntory      .  .  .150 

101.  Intorcourse,  especially  Trading,   between   Subjects  of   Belli- 

gerents        .........        152 

102.  Position  of  Belligerents'  Property  in  the  Enemy  State    .  .        157 
102a.  Effect  of  the  Outbreak  of  War  on  Merchantmen            .          .        160 


CHAPTER   III 


WARFARE    ON    LAND 

I.  On  Land  Warfare  in  General 

103.  Aims  and  Means  of  Land  Warfare 

104.  Lawful  and  Unlawful  Practices  of  Land  Warfare  . 

105.  Objects  of  the  Means  of  Warfare 

106.  Land  Warfare  in  contradistinction  to  Sea  Warfare 


166 
166 
167 
167 


II.   Violence  against  Enemy  Persons 

107.  On  Violence  in  general  against  Enemy  Persons      .          .          .  168 

108.  Killing  and  Wounding  of  Combatants            ....  169 

109.  Refusal  of  Quarter 169 

110.  Lawful  and  Unlawful  Means  of  Killing  and  Wounding  Com- 

batants       .          .          .          .          .          .          .          .          .  170 

111.  Explosive  Bullets 171 

112.  Expanding  (Dum-Dum)  Bullets 172 

113.  Projectiles  diffusing  Asphyxiating  or  Deleterious  Gases            .  172 

114.  Violence  directed  from  Air  Vessels        .  .  .  .  .172 

115.  Violence  against  non-Combatant  Members  of  Armed  Forces    .  173 

116.  Violence  against  Private  Enemy  Persons       ....  173 

117.  Violence  against  the  Head  of  the  Enemy  Stat©  and  against 

Officials  in  Important  Positions      .  .  .176 


III.  Treatment  of  Wounded,  and  Dead  Bodies 

118.  Origin  of  Geneva  Convention 

119.  The  Wounded  and  the  Sick 

120.  Medical  Units  and  Establishments,  and  Material 

121.  Personnel  ...... 

122.  Convoys  of  Evacuation       .... 

123.  Distinctive  Emblem  ..... 

124.  Treatment  of  the  Dead        .... 
124a.  Prevention  of  Abuses        .... 


177 

179 
180 
181 
183 
183 
184 
186 


XXXIV 


CONTENTS  OF 


rV.  Captivity 

BSCT.  PAQE 

125.  Development  of  International  Law  regarding  Captivity           .  186 

126.  Treatment  of  Prisoners  of  War 188 

127.  Wlio  may  claim  to  be  Prisoners  of  War         .          .          .          .  191 

128.  Discipline 191 

129.  Release  on  Parole 192 

130.  Bureau  of  Information        .  .  .  .  .  .  .193 

131.  Relief  Societies 193 

131a.  Prisoners  of  War  during  the  World  War      ....  194 

132.  End  of  Captivity 195 

V.  Appropriation  and  Utilisation  oj  Public  Enemy  Property 

133.  Appropriation  of  all  the  Enemy  Property  no  longer  admissible  .  197 

134.  Immoveable  Public  Property       .  .  .  .  .  .198 

135.  Immoveable  Property  of  Municipalities,  and  of  Religious,  Chari- 

table, and  the  like  Institutions       .  .  .  .  .198 

136.  Utilisation  of  Public  Buildings 198 

137.  Moveable  Public  Property 199 

138.  Moveable  Property  of  Municipalities,  and  of  Religious,  Chari- 

table, and  the  like  Institutions       .....  200 

138a.  Moveable  Public  Property  during  the  World  War          .          .  200 

139.  Booty  on  the  Battlefield 201 

VT.  Appropriation  and  Utilisation  of  Private  Enemy  Property 

140.  Immoveable  Private  Property     ......  202 

141.  Private  War  Material  and  Means  of  Transport       .          .          .  203 

142.  Works  of  Art  and  Science,  Historical  Monuments  .          .          .  203 

143.  Other  Private  Personal  Property           .....  204 
143a.  Moveable  Private  Property  in  the  World  War      .          .          .  204 

144.  Booty  on  the  Battlefield 205 

145.  Private  Enemy  Property  brought  into  a  Belligerent's  Territory  206 

VII.  Requisitions  and  Contributions 

146.  War  must  support  War       .......  207 

147.  Requisitions  in  Kind,  and  Quartering  .....  209 

148.  Contributions 210 


VIII.  Destruction  oj  Enemy  Property 

149.  Wanton  Destruction  prohibited  .  .  .  .  .  .212 

150.  Destruction  for  the  Purpose  of  Offence  and  Defence        .  .        212 

151.  Destruction  in  Marching,  Reconnoitring,  and  Conducting  Trans- 

port     213 

152.  Destruction  of  Arms,  Ammunition,  and  Provisions  .  .        214 

153.  Destructionof  Historical  Monunfients,  Works  of  Art,  and  the  like       214 

154.  General  Devsistation  .  .  .  .  .  .  .  .215 


IX.  Assault,  Siege,  and  Bombardment 

155.  Assault,  Siege,  and  Bombardment,  when  lawful     . 

156.  Assault,  how  carried  out     ..... 

157.  Siege,  how  carried  out         ..... 

158.  Bombardment,  how  carried  out  .... 


216 
218 
218 
220 


THE  SECOND  VOLUME 


XXXV 


X.  Espionage  and  War  Treason 

8BCT. 

159.  Twofold  Cliaracter  of  Espionage  and  War  Treason 

160.  Espionage   in   contradistinction   to   Scouting   and   Despatch- 

bearing        ......... 

161.  Punishment  of  Espionage   ....... 

162.  War  Treason     ......... 


PAOK 

222 

223 
225 
226 


XI.  Rtiaes 

163.  Character  of  Ruses  of  War 

164.  Different  Kinds  of  Stratagems 

165.  Stratagems  in  contradistinction  to  Perfidy 


227 
227 
229 


XII.  Occupation  of  Enemy  Territory 

166.  Occupation  as  an  Aim  of  Warfare         .....  230 

167.  Occupation,  when  effected  ......  233 

168.  Occupation,  when  ended     .......  236 

169.  Rights  and  Duties  in  general  of  the  Occupant        .  .  .  236 

170.  Rights  of  the  Occupant  regarding  the  Inhabitants  .  .  238 

171.  Position  of  Government  Officials  and  Municipal  Functionaries 

during  Occupation         .......  242 

172.  Position  of  Courts  of  Justice  during  Occupation     .  .  .  243 


CHAPTER   IV 


WARFARE    ON   SEA 

I.  On  Sea  Warfare  in  General 

173.  Aims  and  Means  of  Sea  Warfare  .... 

174.  Lawful  and  Unlawful  Practices  of  Sea  Warfare 

175.  Objects  of  the  Means  of  Sea  Warfare    .... 

176.  Development  of  International  Law  regarding  Private  Property 

on  Sea  ........ 

177.  Declaration  of  Paris    ....... 

178.  The  Principle  of  Appropriation  of  Private  Enemy  Vessels  and 

Enemy  Goods  thereon  ...... 

179.  Codification  of  Law  of  Sea  Warfare      .... 


246 

247 
248 

248 
250 

251 
254 


II.  Attack  and  Seizure  of  Enemy  Vessels 

180.  Importance  of  Attack  and  Seizure  of  Enemy  Vessels      .  .  256 

181.  Attack,  when  legitimate      .......  256 

182.  Attack,  how  effected 258 

182a.  Submarine  Contact  IVIines  ......  259 

183.  Duty  of  gi\'ing  Quarter       .......  261 

184.  Seizure 261 

185.  Effect  of  Seiziu-e 262 

186.  Immunity  of  Vessels   charged   with  Religious,   Scientific,   or 

Philanthropic  MLssion  .....••  263 


XXXVl 


CONTENTS  OF 


187.  Immunity  of  Fishing  Boats  and  Small  Boats  employed  in  Local 

Trade 265 

188.  Immunity  of  Merchantmen  at  the  Outbreak  of  War  on  their 

Voyage  to  and  from  a  Belligerent's  Port           .          .          .  266 

189.  Vessels  in  Distress 267 

190.  Immunity  of  Hospital  and  Cartel  Ships         ....  267 

191.  Immunity  of  Mail-Boats  and  Mail-Bags         ....  267 

III.  Appropriation  and  Destruction  of  Enemy  Merchantmen 

192.  Prize  Courts 270 

193.  Conduct  of  Prize  to  Port  of  Prize  Court         ....  272 

194.  Destruction  of  Prize 273 

194:0.  Destruction  of  Prizes  by  Submarines  .....  276 

195.  Ransom  of  Prize         ........  277 

196.  Loss  of  Prize,  especially  Recapture       .....  278 

197.  Fate  of  Prize 279 

198.  Vessels  belonging  to  Subjects  of  Neutral  States,  but  sailing 

under  Enemy  Flag        .......  280 

199.  Vessels   sailing   under   Neutral   Flag,  but   possessing  Enemy 

Character 280 

200.  Goods  sold  to  Neutrals  in  transitu         .....  280 

IV.   Violence  against  Enemy  Persons 

201.  Violence  against  Combatants       ......  280 

202.  Violence  against  non-Combatant  Members  of  Naval  Forces     .  282 

203.  Violence  against  Enemy  Individuals  not  belonging  to  the  Naval 

Forces 282 


V.  Treatment  of  Wounded  and  Shipwrecked 

204.  Adaptation  of  Geneva  Convention  to  Sea  Warfare 

205.  The  Wounded,  Sick,  and  Shipwrecked 
205a.  Treatment  of  the  Dead 

206.  Hospital  Ships 

206a.  Hospital  Ships  in  Neutral  Ports 
2066.  Sick-Bays 

207.  Distinctive  Colour  and  Emblem  of  Hospital  Ships 

208.  Neutral  Vessels  assisting  the  Woimded,  Sick,  or  Shipwrecked 

209.  The  Rehgious,  Medical,  and  Hospital  Staff   . 

209a.  AppUcation  of  Convention  X.,  and  Prevention  of  Abuses 


283 

284 
285 
285 
288 
288 
288 
289 
290 
290 


VI.  Espionage,  Treason,  Ruses 

210.  Espionage  and  Treason        .... 

211.  Ruses        ....... 


291 
291 


VII.  Requisitions,  Contributions,  Bombardment 

212.  Requisitions  and  Contributions  upon  Coast  Towns 

213.  Bombardment  of  the  Enemy  Coast       ..... 

VIII.  Interference  with  Submarine  Telegraph  Cables 

214.  Uncertainty  of  Rules  concerning  Interference  with  Submarine 

Telegraph  Cables  ....... 


293 

294 


298 


THE   SECOND   VOLUME 


XXXVll 


CHAPTER   IVa 

AIR    WARFARE 


SECT. 

214a.  Rules  before  the  World  War 
2146.  Practice  during  the  Woi'ld  War 
214c.  The  Present  Position 


I-AOB 

299 
300 
301 


CHAPTER  V 

NON-HOSTILE    RELATIONS    OF   BELLIGERENTS 

I.  On  non-Hostile  Relations  in  general  between  Belligerents 

215.  Fides  etiam  liosti  servanda  ...... 

216.  Different  Kinds  of  non-Hostile  Relations 

217.  Licences  to  Trade       ....... 


303 
304 
305 


II.  Passports,  Safe-conducts,  Safeguards 

218.  Passports  and  Safe-conducts        .... 

219.  Safeguards         ....... 


306 
307 


III.  Flags  of  Truce 

220.  Meaning  of  Flags  of  Truce 

221.  Treatment  of  Unadmitted  Flag- bearers 

222.  Treatment  of  Admitted  Flag-bearers    . 

223.  Abuse  of  Flag  of  Truce 


308 
309 
310 
311 


IV.  Cartels 

224.  Definition  and  Purpose  of  Cartels 

225.  Cartel  Ships       .... 


312 
313 


V.  Capitulations  and  Simple  Surrender 

226.  Character  and  Purpose  of  Capitulations,  in  contradistinction  to 

Simple  Surrender  ..... 

227.  Contents  of  Capitulations    ..... 

228.  Form  of  Capitulations,  and  of  Simple  Surrender    . 

229.  Competence  to  conclude  Capitulations 

230.  Violation  of  Capitulations,  and  of  Simple  Surrender 


314 
315 
316 
317 
319 


VI.  Armistices 

231.  Character  and  Kinds  of  Armistices 

232.  Suspensions  of  Arms 

233.  General  Armistices     . 

234.  Partial  Armistices 

235.  Competence  to  conclude  Armistices 


320 
321 
321 
323 

324 


xxxvm 

SECT. 

236.  Form  of  Armistices    . 

237.  Contents  of  Armistices 

238.  Commencement  of  Armistices 

239.  Violation  of  Armistices 

240.  End  of  Armistices 


CONTENTS  OF 


PAOB 

325 
325 
327 
328 
329 


f 


CHAPTER  VI 

MEANS    OF   SECURING    LEGITIMATE    WARFARE 

I.  On  Means  in  general  oj  securing  Legitimate  Warfare 

241.  Legitimate  and  Illegitimate  Warfare    .... 

242.  How  Legitimate  Warfare  is  to  a  certain  extent  secured 


330 
331 


II.  Complaints,  Good  Offices  and  Mediation,  Intervention 

243.  Complaints  lodged  with  the  Enemy       .....  332 

244.  Complaints  lodged  with  Neutrals  .....  333 

245.  Gk)od  Offices  and  Mediation  ......  333 

246.  Intervention  on  the  part  of  Neutrals    .....  334 


III.  Reprisals 

247.  Reprisals  between  Belligerents  in  contradistinction  to  Reprisals 

in  Time  of  Peace  ........  335 

248.  Reprisals  admissible  for  every  Illegitimate  Act  of  Warfare       .  337 

249.  Danger  of  Arbitrariness  in  Reprisals     .....  337 

250.  Proposed  Restriction  of  Reprisals  .....  340 


IV.  Punishment  of  War  Crimes 

25 L  Conception  of  War  Crimes 

252.  Different  Kinds  of  War  Crimes    . 

253.  Violations  of  Rules  regarding  Warfare 

254.  Hostilities  in  Arms  by  Private  Indi\T[duals 

255.  Espionage  and  War  Treason 

256.  Marauding  ..... 

257.  Mode  of  Punishment  of  War  Crimes 


341 
342 
342 
345 
346 
349 
349 


V.  Taking  of  Hostages 

258.  Former  Practice  of  taking  Hostages 

259.  Modem  Practice  of  taking  Hostages 


350 
351 


VI.  Compensation 

259a.  How  the  Principle  of  Compensation  for  Violations  of  the  Laws 
of  War  arose  ........ 

2596.  Compensation  for  Violations  of  the  Hague  Pvegulations  . 


353 
354 


THE   SECOND  VOLUME 


XXXIX 


CHAPTER   VII 


END    OF    WAR,    AND    POSTLIMINIUM 
I.  On  Termination  oj  War  in  general 


260.  War  a  Temporary  Condition 

261.  Throe  Modes  of  Termination  of  War 


PAor 
356 
356 


II.  Simple  Cessation  of  Hostilities 

262.  Exceptional  Occurrence  of  Simple  Cessation  of  Hostilities       .        357 

263.  Effect  of  Termination  of  War  through  Simple  Cessation  of 

Hostilities 357 


III.  Subjugation 

264.  Subjugation  in  contradistinction  to  Conquest 

265.  Subjugation  a  Formal  End  of  War 


358 
359 


IV.  Treaty  of  Peace 

266.  Treaty  of  Peace  the  most  frequent  End  of  War 

267.  Peace  Negotiations     . 

268.  Preliminaries  of  Peace 

269.  Form  and  Parts  of  Peace  Treaties 

270.  Competence  to  conclude  Peace    . 

271.  Date  of  Peace  .... 


361 
361 
363 
364 
364 
365 


V.  Effects  of  Treaty  of  Peace 


272.  Restoration  of  Condition  of  Peace 

273.  Principle  of  Uti  Possidetis  . 

274.  Amnesty  ..... 

275.  Release  of  Prisoners  of  War 

276.  Revival  of  Treaties    . 


366 
368 
368 
370 
371 


VI.  Perforinancc  of  Treaty  of  Peace 

277.  Treaty  of  Peace,  how  to  be  carried  out 

278.  Breach  of  Treaty  of  Peace  .  .  .  . 


372 
372 


VII.  Postliminium 

279.  Conception  of  Postliminium          ......  374 

280.  PostUminium  according  to  International  Law,  in  contradistinc- 

tion to  Postliminiuna  according  to  Municipal  Law      .          .  375 

281.  Re\-ival  of  the  Former  Condition  of  Things  .  .  .  .375 

282.  VaUdity  of  Legitimate  Acts 376 

283.  InvaUdity  of  Illegitimate  Acts 377 

284.  No  Postliminium  after  Interregnum     .....  378 


xl 


CONl'ENTS  OF 


PART    III 

NEUTRALITY 
CHAPTER   I 

ON   NEUTRALITY   IN    GENERAL 
I.   Development  of  the  InstittUion  oj  Neutrality 

Neutrality  not  practised  in  Ancient  Times    . 
Neutrality  during  the  Middle  Ages        .... 

Neutrality  during  the  Seventeenth  Century  . 

Progress  of  Neutrality  during  the  Eighteenth  Century    . 

First  Armed  Neutrality       ...... 

The  French  Revolution  and  the  Second  Armed  Neutrality 
Neutrality  during  the  Nineteenth  Century    . 


SECT. 

285. 
286. 
287. 
288. 
289. 
290. 
291. 

292.  Neutrality  in  the  Twentieth  Century 

II.  Characteristics  oJ  Neutrality 

293.  Conception  of  Neutrality    ....... 

294.  Neutralitj'  an  Attitude  of  Impartiality  .... 

295.  NeutraUty  an  Attitude  creating  Rights  and  Duties 

296.  Neutrality  an  Attitude  of  States  ..... 

297.  No  Cessation  of  Intercourse  during  Neutrality  between  Neutrals 

and  Belligerents  ........ 

298.  Neutrality  an  Attitude  during  War  (Neutrality  in  Civil  War). 

299.  Neutrality  to  be  recognised  by  the  Belligerents 

III.  DiJJerent  Kinds  of  Neutrality 

300.  Perpetual  Neutrality 

301.  General  and  Partial  Neutrahty    . 

302.  Voluntary  and  Conventional  Neutrality 

303.  Armed  Neutrality       .... 

304.  Benevolent  Neutrality 

305.  Perfect  and  Qualified  Neutrality 

306.  Some  Historical  Examples  of  Qualified  Neutrality 

IV.  Commencement  and  End  of  Neutrality 

307.  Neutrality  commences  with  Knowledge  of  the  War 

308.  Commencement  of  Neutrality  in  Civil  War   . 

309.  Establishment  of  Neutrality  by  Declarations 

310.  Municipal  Neutrality  Laws 

311.  British  Foreign  EnUstment  Act  . 

312.  End  of  Neutrality 


PAGE 

383 
384 
385 
386 
388 
391 
393 
395 


400 
401 
402 
403 

404 
405 
406 


408 
409 
409 
409 
410 
410 
412 


413 
414 
414 
414 
415 
417 


313. 
314. 


CHAPTER   II 

RELATIONS    BETWEEN    BELLIGERENTS    AND   NEUTRALS 
I.  Rights  and  Duties  deriving  from  Neutrality 
Conduct  in  general  of  Neutrals  and  Belligerents     . 
What  Rights  and  Duties  of  Neutrals  and  of  Belligorerits  there  are 


419 

419 


THE   SECOND   VOLUME 

RKCT. 

315.  Rights  and  Duties  of  Neutrals  contested        .... 

3ir>.  Contents  of  Duty  of  Impartiality  ..... 

.T17.  Duty  of  Impartiality  continuously  growing  more  intense  before 

the  World  War 

318.  Contents  of  Duty  of  Belligerents  to  treat  Neutrals  in  accordance 

with  their  Impartiality  ...... 

319.  Contents  of  Duty  not  to  suppress  Intercourse  between  Neutrals 

and  the  Enemy     ......■• 


xli 

TAOR 

420 
422 


423 


424 


424 


II.  Neutrals  and  Military  Operations 

320.  Hostilities  by  and  against  Neutrals 

321.  Furnishing  Troops  and  Men-of-War  to  BeUigerents 

322.  Subjects  of  Neutrals  fighting  among  BelUgerent  Forces 

323.  Passage  of  Troops  and  War  Material  through  Neutral  Territory 

324.  Passage  of  Wounded  through  Neutral  Territory     . 

325.  Passage  of  Men-of-War        ..... 
32fi.  Occupation  of  Neutral  Territory  by  Belligerents    . 

327.  Prize  Courts  on  Neutral  Territory 

328.  Belligerents'  Prizes  in  Neutral  Ports     . 
328a.  Tlie  Case  of  The  Appam 


429 
432 
433 
434 
436 
437 
438 
439 
440 
441 


III.  Neutrals  and  Military  Preparations 

329.  Depots  and  Factories  on  Neutral  Territory  . 

330.  Levy  of  Troops,  and  the  like        .... 

331.  Passage  of  Bodies  of  Men  intending  to  Enlist 

332.  Organisation  of  Hostile  Expeditions 

333.  Use  of  Neutral  Territory  as  Base  of  Naval  Operations 

334.  Building  and  Fitting-out  of  Vessels  intended  for  Naval  Opera- 

tions ........•• 

335.  The  Alabama  Case  and  the  Three  Rules  of  Washington 


443 

443 
444 
445 
445 

451 
453 


336 
337 
338 


IV.  Neutral  Asylum  to  Land  Forces,   War  Material  and  Airmen 

On  Neutral  Asylum  in  general     ......        456 

Neutral  Territory  and  Prisoners  of  War 

Fugitive  Soldiers  and  Deserters  on  Neutral  Territory 


457 

459 

339.  Neutral  Territory  and  Fugitive  Troops  ....        460 

340.  Neutral  Territory  and  non-Combatant  Members  of  Belligerent 

Forces 462 

341.  Neutral  Territory  and  War  Material  of  Belligerents         .  .        462 
341o.  Neutral  Territory  and  Belligerent  Airmen   ....        463 


V.  Neutral  Asylum  to  Naval  Forces  and  Shipurecked  War  Material 

342.  Asylum  to  Naval  Forces  in  contradistinction  to  Asjlum  to 

Land  Forces  ..... 

343.  Neutral  Asylum  to  Naval  Forces  optional     . 

344.  Asylum  to  Naval  Forces  in  Distress 
344a.  Asylum  to  Submarine  Vessels    . 

345.  Exterritoriahty  of  Men-of-War  during  Asylum 

346.  Facilities  to  Men-of-War  during  Asylum 

347.  Abuse  of  Asylum  to  be  prohibited 


464 
465 
466 
466 
467 
469 
469 


ylii 


CONTENTS    OF 


SECT.  PAO« 

348.  Neutral  Men-of-War  as  an  Asylum  .  .  .  .  .471 
348a.  Neutral  Territory  and  Shipwrecked  Soldiers  and  Sailors  .  473 
3486.  Neutral  Territory  and  Shipwrecked  War  Material          .          .  477 

VI.  Supplies  and  Loatis  to  Belligerents 

349.  Supply  on  the  part  of  Neutrals              .          .          .          .          .  480 

350.  Supply  on  the  pau-t  of  Subjects  of  Neutrals  .  .  .  .481 
35i.  Loans  and  Subsidies  on  the  part  of  Neutrals           .          .          .  484 

352.  Loans  and  Subsidies  on  the  part  of  Subjects  of  Neutrals         .  485 

VII.  Services  to  Belligerente 

353.  Pilotage 487 

354.  Transport  on  the  part  of  Neutrals           .....  488 

355.  Transport  on  the  part  of  Neutral  Merchantmen  and  by  Private 

Neutral  RoUing  Stock 489 

356.  Information  regaurding  MiUtary  and  Naval  Operations    .          .  489 


VIII.   Violation  of  Neutrality 

357.  Violation  of  Neutrality  in  the  Narrower  and  in  the  Wider  Sense 

of  the  Term  ....... 

358.  Violation  in  contradistinction  to  End  of  Neutrality 

359.  Consequences  of  Violations  of  NeutraUty 

360.  Neutrals  not  to  acquiesce  in  Violations  of  Neutrality  com 

mitted  by  a  Belligerent  ..... 

361.  Cases  of  The  General  Armstrong  and  The  Dresden  . 

362.  Mode  of  exacting  Reparation  from  Belligerents  for  Violations  of 

Neutrahty  ........ 

363.  NegUgence  on  the  part  of  Neutrals  .... 
363a.  Laying  of  Submarine  Contact  Mines  by  Neutrals 


493 
494 
495 

496 
497 

499 
501 

502 


IX.  Right  of  Angary 

364.  The  Original  Right  of  Angary      .... 

365.  The  Modern  Right  of  Angary       .... 

366.  Right  of  Angary  concerning  Neutral  Rolling  Stock 

367.  Right  of  Angary  not  deriving  from  Neutrality 


503 
506 
50» 


CHAPTER   III 

BLOCKADE 

I.  Conception  of  Blockade 

368.  Definition  of  Blockade 

369.  Blockeide,  Strategic  and  Commercial 

370.  Blockade  to  be  Universal    . 

371.  Blockade,  Outwards  and  Inwards 

372.  What  Places  can  be  Blockaded    . 


511 

513 
514 
514 
515 


THE    SECOND    VOLUME  xliii 

8KCT.  PAOK 

373.  Blockade  of  International  Rivers          .          .          .          .          .515 
373a.  Blockade  of  Straits 516 

374.  Justification  of  Blockade     .          .          .          .          .       '   .          .  517 

II.  Eatablishment  of  Blockade 

375.  Competence  to  establish  Blockade         .  .  .  .  .518 

376.  Declaration  and  Notification  of  Blockade      ....  518 

377.  Length  of  Time  for  Egress  of  Neutral  Vessels         .  .  .521 

378.  End  of  Blockade 522 

III.  Effectiveness  of  Blockade 

379.  Effective  in  contradistinction  to  Fictitious  Blockade        .          .  523 

380.  Condition  of  Effectiveness  of  Blockade           ....  524 

381.  Amount  of  Danger  which  creates  Effectiveness      .          .          .  526 

382.  Cessation  of  Effectiveness  .......  527 

IV.  Breach  of  Blockade 

383.  Definition  of  Breach  of  Blockade 528 

384.  No  Breach  without  Notice  of  Blockade          ....  528 

385.  The  Former  Practice  as  to  what  constitutes  an  Attempt  to  break 

Blockade 530 

385a.  What  constituted  an  Attempt  to  break  Blockade  according  to 

the  unratified  Declaration  of  London       ....  532 

386.  When  Ingress  is  not  considered  Breach  of  Blockade        .          .  534 

387.  When  Egress  is  not  considered  Breach  of  Blockade         .          .  535 

388.  Passage  through  Unblockaded  Canal  no  Breach  of  Blockade      .  536 

V.  Consequences  of  Breach  of  Blockade 

389.  Capture  of  Blockade-running  Vessels    .....  536 

390.  Penalty  for  Breach  of  Blockade 538 

VI.   The  so-called  Long-Distance  Blockade 

390a.  Conception  of  the  Long-Distance  Blockade           .          .          .  539 

3906.  The  Isolation  of  the  Central  Empires  during  the  World  War  .  542 


CHAPTER   IV 

CONTRABAND 

I.  Conception  of  Contraband 

391.  Definition  of  Contraband  of  War 546 


392.  Absolute  and  Conditional  Contraband,  and  Free  Articles 

393.  Articles  absolutely  Contraband    ..... 

394.  Articles  conditionally  Contraband         .... 

395.  Hostile  Destination  essential  to  Contraband 

396.  Free  Articles 

396a.  Articles  destined  for  the  use  of  the  Carrjdng  Vessel,  or  to  aid 

the  Wounded        ....... 

397.  Contraband  Vessels 


548 
549 
552 
557 
560 

561 
562 


xliv 


CONTENTS   OF 


II.  Carriage  of  Contraband 

SECT. 

398.  Carriage  of  Contraband  Penal  by  the  Municipal  Law  of  Belli- 

gerents        ......... 

399.  Direct  Carriage  of  Contraband     ...... 

400.  Circuitous  Carriage  of  Contraband        ..... 

401.  Indirect  Carriage    of    Contraband    (Doctrine    of    Continuous 

Transports)  ........ 

402.  The  Case  of  The  Bundesrath 

403.  Continental  Support  to  the  Doctrine  of  Continuous  Transports 
403a.  The  Declaration  of  London  concerning  the  Doctrine  of  Contin- 
uous Voyages,  and  the  Practice  during  the  World  War 


563 
564 
566 

568 
570 
571 

573 


III.  Consequences  of  Carriage  of  Contraband 

404.  Capture  for  Carriage  of  Contraband        .....        576 

405.  Penalty  for  Carriage  of  Contraband  according  to  the  Practice 

hitherto  prevailing         .......        578 

406.  Penalty  according  to  the  Declaration  of  London  for  Carriage  of 

Contraband  ........        581 

406a.  Seizure  of  Contraband  without  Seizure  of  the  Vessel     .  .        583 


CHAPTER  V 

UNNEUTRAL   SERVICE 

I.  The  Different  Kinds  of  Unneutral  Service 

407.  Unneutral  Service  in  general        ......  585 

408.  Carriage  of  Persons  for  the  Enemy        .....  587 

409.  Transmission  of  Intelligence  to  the  Enemy   ....  592 

410.  Unneutral  Service  creating  Enemy  Character         .  .  .  594 

II.  Consequences  of  Unneutrai  Service 

411.  Capture  for  Unneutral  Service     ......        596 

412.  Penalty  for  Unneutral  Service     ......        597 

413.  Seizure  of  Enemy  Persons  and  Despatches  without  Seiziu-e  of 

Vessel 599 

413a.  Seizure  of  Enemy  Reservists  during  the  World  War        ,  .       601 


CHAPTER  VI 

VISITATION,    CAPTURE,    AND   TRIAL   OF   NEUTRAL    VESSELS 
I.   Visitation 

414.  Conception  of  Right  of  Visitation  .... 

415.  Right  of  Visitation,  by  whom,  when,  and  where  exercised 

416.  Only  Private  Vessels  may  be  visited    .... 

417.  Vessels  under  Convoy  ...... 

418.  No  Universal  Rules  regarding  Mode  of  Visitation  . 


604 
605 
606 
606 
609 


THE    SECOND    VOLUME 

8KCT. 

419.  Stoppiiip  of  Vessels  for  tlio  Purpose  of  Visitation  . 

420.  Visit 

421.  Search       

421a.  Bringing  Vessels  into  Port  for  Searcli 

422.  Consequences  of  Resistance  to  Visitation 

423.  Wliat  constitutes  Resistance        .... 

424.  Sailing  under  Enemy  Convoy  equivalent  to  Resistance 

425.  Resistance  by  Neutral  Convoy     .... 

426.  Deficiency  of  Papers  ...... 

427.  Spoliation,  Defacement,  and  Concealment  of  Papers 

428.  Double  and  False  Papers    ..... 
428o.  Call  at  an  Enemy  Port  of  a  Vessel  with  Neutral  Destinat 


xlv 

t'AGK 

609 
610 
611 
612 
612 
613 
614 
615 
616 
616 
617 
618 


II.  Capture 

429.  Grounds  and  Mode  of  Capture 619 

430.  Effect  of  Capture  of  Neutral  Vessels,  and  their  Conduct  to  Port  619 

431.  Destruction  of  Neutral  Prizes       ......  620 

431a.  Destruction  of  Neutral  Prizes  diu"ing  the  World  War    .  .  623 

432.  Ransom  and  Recapture  of  Neutral  Prizes      ....  624 

433.  Release  after  Capture 625 


m.  Trial  of  Captured  Neutral  Vessels 

434.  Trial  of  Captured  Vessels  a  Municipal  Matter 

435.  Result  of  Trial 

436.  Trial  after  Conclusion  of  Peace    .... 

437.  Protests  and  Claims  of  Neutrals  after  Trial  . 


626 
630 
630 
632 


CHAPTER   VII 


THE    PROPOSED    INTERNATIONAL   PRIZE    COURT 

I.  Proposals  for  International  Prize  Courts 
Early  Projects  ........ 


438. 

439.  German  Project  of  1907      .... 

440.  British  Project  of  1907        . 

441.  Convention  XII.  of  the  Second  Hague  Conference 


634 
636 
636 
637 


II.  The  Hague  Project  for  an  International  Prize  Court 

442.  The  Court  .... 

443.  Competence       .... 

444.  ^Vhat  Law  to  be  applied     . 

445.  Proceedings  and  Judgment 

446.  Action  in  Damages  instead  of  Appeal 

447.  Present  Position  of  the  Hague  Project 


638 
639 
641 
641 
642 
643 


INDEX 


645 


'■^r 


PART   I 

SETTLEMENT   OF   STATE  DIFFERENCES 


VOL.   II. 


V 


CHAPTER  I 

AMICABLE   SETTLEMENT   OF   STATE   DIFFERENCES 


STATE   DIFFERENCES   AND   THEIR  AMICABLE   SETTLE- 
MENT IN  GENERAL 

Twiss,  ii.  §§  1-3  — Hershey,  No.  304  — UUmann,  §§  148-150  — Bulmerincq 
in  Holtzendorff,  iv.  pp.  5-12— Heffter,  §§  105-107— Rivier,  ii.  §  57— 
Bonfils,  No.  930— Despagnet,  No.  469— Pradier-Fod6r6,  vi.  Nos.  2580- 
2583— Calvo,  iii.  §§  1670-1671— Martens,  ii.  §§  101-102— Fiore,  ii.  Nos. 
1192-1198,  and  Code,  No.  1251 — Wagner,  Zur  Lehre  von  den  Streiter- 
ledigungsmitteln  des  Volkerrechts  (1900). 

§  1.  International  differences  can  arise  from  a  variety  Legal  and 
of  grounds.     Between  the  extremes  of  a  simple  and  I'nter'-'^*^ 
comparatively   unimportant   act   of   discourtesy   com-  na«onai 
mitted  by  one  State  against  another,  and  so  gross  an  enoes. 
insult  as  must  necessarily  lead  to  war,  there  are  many 
other    grounds,    varying    in    nature    and    importance. 
State  differences  are  correctly  divided  into  legal  and 
political.     Legal  differences  arise  from  ^cts  for  which 
States  have  to  bear  responsibility,  be  it  acts  of  their 
own  or  of  their  parliaments,  their  judicial  and  admini- 
strative officials,  their  armed  forces,  or  individuals  living 
on  their  territory.^    Pohtical  differences  are  the  result 
of  a  conflict  of  political  interests.     But  although  this 
distinction   is    certainly    theoretically   correct   and   of 
practical  importance,   frequently  in  practice  a  sharp 
line  cannot  be  drawn.     For  in  many  cases  States  either 

^  See  above,  vol.  i.  §  149. 


4   AMICABLE  SETTLEMENT  OF  STATE  DIFFERENCES 

hide  their  poHtical  interests  behind  a  claim  for  an 
alleged  injury,  or  make  a  positive,  but  comparatively 
insignificant,  injury  a  pretext  for  the  carrying  out  of 
political  ends.  Nations  which  have  been  for  years 
facing  each  other  armed  to  the  teeth,  waiting  for  a 
convenient  moment  to  engage  in  hostihties,  are  only 
too  ready  to  obhterate  the  boundary  line  between  legal 
and  political  differences.  Between  such  nations  a 
condition  of  continuous  friction  prevails  which  makes 
it  difficult,  if  not  impossible,  in  every  case  which  arises, 
to  distinguish  the  legal  iiofn.  the  political  character  of 
the  difference. 
Inter-  §  2.  It  is  oftcu  maintained  that  the  Law  of  Nations 

Law°not    ^^  conccrncd  with  legal  differences  only,  political  differ- 
exciu-       ences  being  a  matter,  not  of  law,  but  of  politics.    Now 
concerned  it  is  Certainly  true  that  only  legal  ^  differences  can  be 
Kgai  Dif-  settled  by  a  juristic  decision  of  the  underlying  juristic 
ferences.    question,  whatever  may  be  the  way  in  which  such  a 
decision  is  arrived  at.     But  although  political  differ- 
ences cannot  be  the  objects  of  juristic  decision,  they 
can  be  settled  short  of  war  by  amicable  or  compulsive 
means.     And    legal   differences,    although    within    the 
scope  of  juristic  decision,  can  be  of  such  kinds  as  to 
prevent  the  parties  from  submitting  them  to  juristic 
decision,  without  being  of  such  a  nature  that  they 
cannot  be  settled  peaceably  at  all.^    Moreover,  as  has 
just  been  pointed  out,  although  the  distinction  between 
legal  and  pohtical  differences  is  correct  in  theory  and 
of  practical  importance,   nevertheless,   in  practice,   a 
sharp  line  frequently  cannot  be  drawn.     Therefore  the 
Law  of  Nations  is  not  exclusively  concerned  with  legal 
differences,  for  in  fact  most  amicable  means  of  setthng 
legal  differences  are  likewise  means  of  settling  political 

»  On  the  'justiciability'  of  inter-  Law,  ix.  (1916),  pp.  78-95. 
national  differences,  see  Reeves  and 

Scott    in    the    Proceedings    of   the  ^  See  Balch  in  R.O.,  xxi.  (1914), 

American   Society    of   International  pp.  137-182. 


AMICABLE   SETTLEMENT  IN  GENERAL  5 

dilfereuces,  and  so  are  two  of  the  compulsive  means  of 
settling  difierences — namely,  pacific  blockade  and  inter- 
vention. 

§  3.  Political   and   legal   differences   can   be   settled  Amicable 
either  by  amicable  or  by  compulsive  means.     Before  dis't^nc^* 
the  establishment  of  the  League  of  Nations  there  were^'o^^^^ 
four   kinds   of    amicable   means — namely,    negotiation  Hive  Set- 
between    the    parties,    good    offices    of    third    parties,  ]3Xr" 
mediation,  and  arbitration. ^    And  there  were  also  four  ^"°««- 
kinds  of  compulsive  means — namely,  retorsion,  reprisals 
(including    embargo),    blockade,    and    intervention    of 
third  States.     No  State  was  allowed  to  make  use  of 
compulsive  means  before  negotiation  had  been  tried, 
but  there  was  no  necessity  for  the  good  offices  or  media- 
tion of  third  States,  and  eventually  arbitration,^  to  be 
tried   beforehand   also.    Frequently,    however,    States 
made  use  of  the  so-called  Compromise  Clause  ^  in  their 
treaties,  which  stipulated  that  any  differences  arising 
between  them  with  regard  to  matters  regulated  by  the 
treaties  concerned,  or  their  interpretation,  should  be 
settled  through  the  amicable  means  of  arbitration  to 
the  exclusion  of  all  compulsive  means.     And  in  a  few 
cases  States  had  even  concluded  treaties  stipulating 
that   all   differences,    without   exception,    that   might 
arise  between  them  should   be   amicably   settled   by 
arbitration.'*    These  exceptions,  however,  only  confirmed 
the  rule  that  no  international  legal  duty  as  yet  existed 
for  States  to  settle,  or  even  try  to  settle,  their  differences 

^  Some  writers  (see  Hall,  §  118,  over,  there  are  some  positive  legal 

and  Heilborn,  Systein,  p.  404)  refuse  rules  in  existence  concerning  these 

to  treat  negotiation,  good  offices,  and  means — see  below,  §§  5-10. 

mediation  as  means  of  settling  differ-  s  Except  in  the  case  of  contract 

ences,  because  they  cannot  find  that  ^j^^ts  claimed  from  the  Government 

these  means  are  of  any  legal  value,  ^f  ^^g  country  by  the  Government  of 

It   being   within   the  choice  of   the  another  country  as  being  due  to  its 

parties  whether  or  not  they  agree  nationals.  See  Convention  ii. ;  above, 

to  make  use  of  them.     They  forget  ^.^j   ^   §  135  .  ^nd  below,  §  19. 

however,     the     enormous    political  1    •    c  ceo 

value  of  these  means,  which  alone  See  above,  vol.  1.  §  553. 

well  justifies  their  treatment ;  more-  *  See  below,  §  17. 


6   AMICABLE  SETTLEMENT  OF  STATE  DIFFERENCES 

amicably  through  arbitration,  before  they  made  use 
of  compulsive  means. 

But  after  the  World  War,  the  Powers,  anxious  *  to 
achieve  international  peace  and  security  by  the  accept- 
ance of  obligations  not  to  resort  to  war,'  adopted  in  the 
Covenant  of  the  League  of  Nations  three  new  means 
of  settling  international  disputes.  They  were  :  inquiry 
and  report  by  the  Council  of  the  League,  inquiry  and 
report  by  the  Assembly,  and  a  judgment  of  the  pro- 
posed International  Court  of  Justice.  Moreover,  the 
members  of  the  League  have  undertaken  that  they 
will  not  go  to  war  without  attempting  to  reach  a  settle- 
ment in  the  manner  laid  down  by  the  Covenant,  and 
will  act  in  concert  against  any  member  which  disregards 
its  undertaking.^ 

II 

NEGOTIATION 

Twiss,  ii.  §  4— Lawrence,  §  220— Moore,  vii.  §  1064— Taylor,  §§  359-360— 
Heffter,  §  107 — Bulmerincq  in  Holtzendorff,  iv.  pp.  13-17 — Ullmann, 
§  151— Bonfils,  Nos.  931-932— Despagnet,  Nos.  470  and  477— Pradier- 
Foddr^,  vi.  Nos.  2584-2587— Rivier,  ii.  §  57— Calvo,  iii.  §§  1672-1680— 
Martens,  ii.  §  103— Nys,  ii.  pp.  539-542. 

In  what        §  4.  The  simplest  means  of  settling  State  differences, 
Negotia-   ^^^^  ^j^g^^  |-Q  -which  States  always  resort  before  they 

tion  con-  ... 

Bists.  make  use  of  other  means,  is  negotiation.  Indeed  the 
Covenant  of  the  League  of  Nations  indirectly  recognises 
it  as  the  first  step  towards  the  settlement  of  all  inter- 
national disputes.  It  consists  in  such  acts  of  inter- 
course between  the  parties  as  are  initiated  and  directed 
for  the  purpose  of  effecting  an  understanding,  and 
thereby  amicably  settling  the  difference  that  has  arisen 
between  them.^    Negotiation  as  a  rule  begins  by  a 

^  The  United  States  of  America       where  the  international  transaction 
is  not  a  member  of  the  League.  of    negotiation    in    general    is   dis- 

*  See   above,    vol.    i.   §§  477-482,       cussed. 


NEGOTIATION  7 

State  complaining  of  a  certain  act,  or  lodging  a  certain 
claim  with  another  State.  The  next  step  is  a  state- 
ment from  the  latter  making  out  its  case,  which  is 
handed  to  the  former.  It  may  be  that  the  parties  at  once 
come  to  an  understanding  through  this  simple  exchange 
of  statements.  If  not,  other  acts  may  follow  accord- 
ing to  the  requirements  of  the  special  case.  Thus,  for 
instance,  other  statements  may  be  exchanged,  or  a 
conference  of  diplomatic  envoys,  or  even  of  the  heads 
of  the  States  at  variance,  may  be  arranged,  for  the 
pui'pose  of  discussing  the  differences  and  preparing  the 
basis  for  an  understanding. 

§  5.  Failure  to  reach  a  settlement  by  diplomacy  is  often  inter- 
due  to  the  difficulty  of  arriving  at  the  real  facts.     So  commiv 
the    contracting    Powers    of    the    Hague    Convention  ^^0"^.°^ 

c  C3  Inquiry. 

for  the  Pacific  Settlement  of  International  Disputes 
deemed  it  expedient  and  desirable  that,  if  ordinary 
diplomatic  negotiation  had  failed  to  settle  such  differ- 
ences as  did  not  involve  either  honour  or  vital  interests, 
the  parties  should,  so  far  as  circumstances  allowed, 
institute  an  International  Commission  of  Inquiry  ^ 
to  elucidate  the  facts  underlying  the  difference  by  an 
impartial  and  conscientious  investigation.  The  Con- 
vention of  1899  had  only  six  articles  (9-14)  on  the  subject. 
The  Second  Conference  of  1907,  profiting  by  the  experi- 
ence gained  by  the  Conunission  of  Inquiry  in  the  Dogger 
Bank  -  case,  the  fii'st  occasion  on  w^hich  a  Commission 

^  See    Herr,    Die    Unterauchungi-  the    Far    East,   fired  into  the    Hull 

kommiisionen  der  Haager  Friedens-  fishing  fleet  ott  the  Dogger  Bank,  in 

konferenzen  (1911)  ;    Meurer,   i.    pp.  the  North  Sea,  whereby  two  fisher- 

129-166;      Higgins,     pp.     167-170;  men  were  killed,   and    considerable 

L^monon,     pp.     77-91;      Wehberg,  damage  was  done  to  several  trawlers. 

Kommerdar,  pp.  21-46  ;    Nippold,  i.  Great  Britain  demanded  from  Russia, 

pp.  23-35  ;    Scott,    Conferences,  pp.  not    only    an    apology    and    ample 

265-273  ;  Politis  inR.G.,  xix.  (1912),  damages,  but  also  severe  punishment 

pp.  149-188  ;  Lammasch,  Die  Lehre  of    the    oflBcer   responsible    for    the 

von  der  Schiedsgerichtsharkeit  (1914),  outrage.    As  Russia  maintained  that 

pp.  224-239.  the  firing  was  caused  by  the  approach 

*  On  October  21,  1904,  dming  the  of  some  Japanese  torpedo-boats,  and 

Russo-Japanese   War,    the    Russian  that  she  could  therefore  not  punish 

Baltic  fleet,  which  was  on  its  way  to  the  oflicer  in  command,  the  parties 


8       AMICABLE   SETTLEMENT  OF  STATE  DIFFERENCES 

of  Inquiry  was  set  up,  remodelled  the  institution.  A 
commission  was  to  investigate  the  circumstances  of 
the  case,  and  issue  a  report  '  limited  to  a  statement  of 
facts '  and  having  in  no  way '  the  character  of  an  award ' ; 
the  parties  were  to  be  free  as  to  the  effect  to  be  given 
to  it.  The  more  important  of  the  twenty-eight  articles 
(9-36)  dealing  with  Commissions  of  Inquiry  in  Hague 
Convention  i.  were  the  following  : — 

(1)  A  commission  was  to  be  constituted  by  a  special 
treaty  between  the  parties.  It  was  to  determine  the  facts 
to  be  examined,  the  manner  and  period  within  which  the 
commission  was  to  be  formed,  and  the  extent  of  the  powers 
of  the  commissioners  (Article  10).  If  the  treaty  did  not 
stipulate  the  manner  in  which  the  commission  was  to  be 
formed,  it  was  to  be  formed  in  the  same  manner  as  an 
arbitration  tribunal  under  Articles  45  and  57  (Article  12). 
The  parties  might  appoint  assessors,  agents,  and  counsel 
(Articles  10,  14). 

(2)  The  International  Bureau  of  the  Permanent  Court 
of  Arbitration  was  to  act  as  registry  for  the  commissions 
which  sat  at  the  Hague  ;  but  if  they  sat  elsewhere,  a  Secre- 
tary-General was  to  be  appointed  whose  office  was  to  serve 
as  registry  (Articles  15-16). 

(3)  The  parties  might  agree  upon  rules  of  procedure  ; 
otherwise  the  rules  comprised  in  Articles  19-32  were  to  be 

agreed  upon  the  establishment  of  an  mander    of    the    Baltic    fleet,    was 

International  Commission  of  Inquiry.  responsible  for  the  incident,  but  that 

This   commission  was  charged,  not  these  facts  were  '  not  of  a  nature  to 

only   to   ascertain   the  facts  of  the  cast  any  discredit  upon  the  military 

incident,  but  also  to  pronounce  an  qualities  or  the  humanity  of  Admiral 

opinion  concerning  the  responsibility  Rojdestvensky  or  of  the  personnel  of 

for  the  incident,  and  the  degree  of  his  squadron.'      In   consequence   of 

blame  attaching  to  the  responsible  the  last  part  of   this  report  Great 

persons.     The  commission  consisted  Britain  could  not  insist  upon  punish- 

of   five   naval  officers  of  high  rank  ment    of    the    responsible    Russian 

— one    British,    one    Russian,    one  admiral,  but  Russia  paid  a  sum  of 

American,    one    French,    and    one  £65,000  to  indemnify  the  victims  of 

Austrian — and  sat  at  Paris  in  Feb-  the  incident  and  the  families  of  the 

ruary  1905.        The    report    of     the  two  dead  fishermen.     See  Martens, 

commission  stated  that  no  torpedo-  N.R.Q.,  2ndSer.  xxxiii.  pp.  641-716; 

boats   had    been   present,    that    the  Mandelstam  in  iJ.G*.,  xii.  (1905),  pp. 

opening  of  fire  on  the  part  of  the  161  and  351  ;  Lammasch,  Die  Lehre. 

Baltic  fleet  was  not  justifiable,  that  von  der  Schiedigerichtaharkeil  (1914), 

Admiral    Rojdestvensky,   the  com-  pp.  236-239. 


NEGOTIATION  y 

applicable  (Article  17),  and  details  of  procedure  not  covered 
by  the  treaty  or  by  Articles  19-32  were  to  be  determined 
by  the  commission  (Article  18). 

(4)  The  report  of  the  commission  was  to  be  signed  by 
all  its  members  ;  if  a  member  refused  to  sign,  the  fact  was 
to  be  mentioned,  but  the  validity  of  the  report  was  not  to  be 
thereby  affected  (Article  33).  The  report  of  the  commission 
was  to  be  read  in  open  court,  the  agents  and  counsel  of  the 
parties  being  present  or  duly  summoned  to  attend  ;  a  copy 
was  to  be  furnished  to  each  party  (Article  34). 

These  stipulations  are  still  in  force  as  between  the 
parties  to  Hague  Convention  i.,  although  it  may  be 
that  the  new  machinery  devised  by  the  League  of 
Nations  or  provided  in  more  recent  treaties  may  have 
robbed  them  of  much  of  their  value.  The  author  did 
not  live  to  express  an  opinion. 

Different  from  these  International  Commissions,  but 
inspired  by  the  idea  underlying  them,  were  the  Per- 
manent Commissions  of  Inquiry  constituted  for  differ- 
ences between  the  United  States  of  America  and  a 
great  number  of  foreign  States,^  by  the  series  of 
so-called  Bryan  Arbitration  Treaties  signed  at  Wash- 
ington in  the  autumn  of  1914.  These  treaties  were 
not  all  identical,  but  had  the  following  features  in 
common  : — 

The  High  Contracting  Parties  agreed  to  refer  all  disputes 
which  diplomatic  methods  had  failed  to  adjust  to  a  Per- 
manent International  Commission  for  investigation  and 
report,  and  they  agreed  not  to  begin  hostihties  before  the 
report  was  submitted.  The  Permanent  Commissions  were 
to  be  composed  of  five  members  ;  each  of  the  parties  choosing 
one  of  its  own  subjects  and  one  citizen  of  some  third  country, 

^  See  above,  vol.  i.  §50,  and  .4./.,  on  September  15,  1914  (Treaty  Ser. 

vii.  (1913),  p.  823,  viii.  (1914),  p.  565,  (1914),  No.  16,  Cd.  7714),  and  ratified 

and  ix.  (1915),  pp.  195  and  494.     The  on  November  10,  1914. 
treaty  with  Great  Britain  was  signed 


10     AMICABLE   SETTLEMENT   OF   STATE   DIFFERENCES 

and  the  fifth  member,  also  a  subject  of  a  third  State,  being 
chosen  by  common  agreement  between  the  two  parties. 
The  commission  might,  by  unanimous  agreement,  offer  its 
services  in  a  dispute  even  before  the  parties  were  compelled 
by  failure  of  diplomatic  negotiation  to  resort  to  it.  Its 
report  had  to  be  completed  within  one  year,  unless  the 
parties  hmited  or  extended  the  time  by  mutual  agreement. 
The  parties,  having  received  the  report,  were  to  be  at 
hberty  to  take  such  action  as  they  might  think  fit. 

All  these  treaties  were  concluded  for  a  period  of  five 
years ;  they  were,  however,  to  continue  in  force  at 
the  end  of  that  time  until  twelve  months  after  one  of 
the  parties  had  given  notice  of  withdrawal.  Accord- 
ingly, many  of  them  are  still  in  operation.^ 
Effect  of  §  6.  The  eJSect  of  negotiation  may  be  to  make  it 
tion.°  ^*  apparent  that  the  parties  cannot  come  to  an  amicable 
understanding  at  all.  But  frequently  the  effect  is  that 
one  of  the  parties  acknowledges  the  claim  of  the  other 
party.  Again,  sometimes  negotiation  results  in  a  party, 
although  it  does  not  acknowledge  its  opponent's  alleged 
rights,  waiving  its  own  rights  for  the  sake  of  peace, 
and  for  the  purpose  of  making  friends  with  its  opponent. 
And,  lastly,  the  effect  of  negotiation  may  be  a  compro- 
mise. Frequently  the  parties,  after  having  come  to  an 
understanding,  conclude  a  treaty  in  which  they  embody 
the  terms.  The  practice  of  everyday  life  shows  clearly 
the  great  importance  of  negotiation  as  a  means  of 
setthng  international  differences.  The  modern  develop- 
ment of  international  traffic  and  transport,  the  fact 
that  individuals  are  constantly  travelling  on  foreign 
territories,  the  keen  interest  taken  by  all  powerful 
States  in  colonial  enterprise,  and  many  other  factors, 
make  the  daily  rise  of  differences  between  States  un- 

^  A    somewhat    different     Inter-  May  25,  1915.     See  the  text  of  the 

national    Commission     was    agreed  treaty  in   Alvarez,    Grande  Ouerre, 

upon  by  Argentina,  Brazil,  and  Chili  p.    68,   and   E.G.,    xxii.    (1915),   p. 

by  the  Treaty  of  Buenos  Ayres  of  475. 


GOOD   OFFICES  AND   MEDIATION  11 

avoidable.  Yet  the  greater  number  of  such  differences 
are  settled  through  negotiation  of  some  kind  or 
other. 

Ill 

GOOD   OFFICES  AND   MEDIATION 

Maine,  pp.  207-228— Phillimore,  iii.  §§  3-5— Twiss,  ii.  §  7— Lawrence,  §  220 
—Moore,  vii.  §§  1065-1068— Hershey.  Nos.  306-308— Taylor,  §§359-360 
— Wheaton,  §  73— Bluntschli,  §§  4S3-487— Heffter,  §§  107-108-Bul 
merincq  in  Holtzeiidorff,  iv.  pp.  17-30— UUmann,  §§  152-153— Bonfils 
Nos.  932'-943'— Despagnet,  Nos.  471-476— Pradier-Fod6r6,  vi.  Nos, 
2588-2593— M^rignhac,  i.  pp.  429-447— Rivier,  ii.  §  58— Nys,  ii.  pp 
543-546— Calvo,  iii.  §§  1682-1705— Fiore,  ii.  Nos.  1199-1201,  and  Code 
Nos.  1253-1298— Martens,  ii.  §  103— Holls,  The  Peace  Conference  at  the 
Hague  (1900),  pp.  176-203— Zamfiresco,  De  la  Mediation  (1911)— 
Lammasch,  Die  Lehre  von  der  Schicdsgerichtsbarkeit  (1914),  pp.  11-23 — 
Politis  in  R.G.,  ivii.  (1910),  pp.  136-163. 

§  7.  When  parties  are  not  inclined  to  settle  their  Occasions 
differences  by  negotiation,  or  when  they  have  nego-  offices^ 
tiated  without  effecting  an  understanding,  a  third  State  ^  *^o^^'' 
may  be  able  to  procure  a  settlement  through  its  good 
offices  or  its  mediation.  Such  assistance  may  have 
been  asked  for  by  one  or  both  the  parties  at  variance,  or 
it  may  have  been  spontaneously  offered.  Collective 
mediation  is  also  possible,  several  States  acting  at  the 
same  time  as  mediators.  It  is  further  possible  for  a 
mediatorial  conference  or  congress  to  meet  for  the 
purpose  of  discussing  the  terms  of  an  understanding 
between  the  conflicting  parties.  And  it  must  be 
especially  mentioned  that  good  offices  and  mediation 
are  not  confined  to  the  time  before  the  parties  at  issue 
have  appealed  to  arms  ;  they  can  also  be  offered  and 
sought  during  hostihties,  for  the  purpose  of  bringing 
the  war  to  an  end.  It  is  during  war  that  good  offices 
and  mediation  are  of  particular  value,  neither  of  the 
belhgerents  as  a  rule  being  inchned  to  open  peace 
negotiations  on  his  own  account. 

^  Or  the  League  of  Nations,  see  below,  §§  •lbh-2og. 


12     AMICABLE   SETTLEMENT   OF  STATE   DIFFERENCES 

Right  and     §  8.  As  a  rule,  a  third  State  has  no  duty  to  offer  its 
oflfering,    good  officGs  or  mediation,  or  to  respond  to  a  request 
[ng^lnd    ^^^"^  conflicting  States  for  this  service,  nor  is  it,  as  a 
rendering  rule,  the  duty  of  Conflicting  parties  themselves  to  ask 
Offices      or  to  accept  a  third  State's  good  offices  and  mediation. 
aSo^^"^^  But  by  special  treaty  such  a  duty  may  be  stipulated. 
Thus,  for  instance,  by  Article  8  of  the  Peace  Treaty  of 
Paris  of  March  30, 1856,  between  Austria,  France,  Great 
Britain,  Prussia,  Russia,  Sardinia,  and  Turkey,  it  was 
stipulated  that,  in  case  a  difference  which  threatened 
peace  should  arise  between  Turkey  and  one  or  more  of 
the  signatory  Powers,  the  parties  should  be  obhged, 
before  resorting  to  arms,  to  ask  for  the  mediation  of  the 
other  signatory  Powers.     Moreover,   the  Hague  Con- 
vention  for   the   Pacific   Settlement   of   International 
Disputes  laid  down  some  stipulations  respecting  the 
right  and  duty  of  offering  or  accepting  good  offices  and 
mediation,  which  will  be  found  below  in  §  10. 
Good  §  9.  Diplomatic    practice   frequently   does   not    dis- 

contradS-  tinguish  between  good  offices  and  mediation.  But 
to°MSk-  ^l^^ough  good  offices  can  easily  develop  into  media- 
tion, tion,  they  must  not  be  confounded  with  it.  The  differ- 
ence between  them  is  that,  whereas  good  offices  consist 
in  various  kinds  of  action  tending  to  call  negotiations 
between  the  conflicting  States  into  existence,  media- 
tion consists  in  direct  conduct  of  negotiations  between 
the  parties  at  issue  on  the  basis  of  proposals  made  by 
the  mediator.  Good  offices  seek  to  induce  conflict- 
ing parties,  who  are  disinclined  to  negotiate,  to  do  so, 
or  those  who  have  negotiated  without  effecting  an 
understanding,  to  renew  the  attempt.  Good  offices 
may  also  consist  in  advice,  in  submitting  a  proposal  of 
one  of  the  parties  to  the  other,  and  the  like,  but  States 
tendering  them  never  take  part  in  the  negotiations 
themselves.  On  the  other  hand,  a  mediator  is  a  middle- 
man who  does  take  part  in  the  negotiations.     He  makes 


GOOD   OFFICES   AND   MEDIATION  13 

certain  propositions  on  the  basis  of  which  the  States 
at  variance  may  come  to  an  understanding.  He  even 
conducts  the  negotiations  himself,  always  anxious  to 
reconcile  the  opposing  claims  and  to  appease  the  feeling 
of  resentment  between  the  parties.  All  the  efforts  of 
the  mediator  may  often,  of  course,  be  useless,  the  parties 
being  unable  or  unwilhng  to  consent  to  an  agreement. 
But  if  an  understanding  is  arrived  at,  the  position  of 
the  mediator  as  a  party  to  the  negotiation,  although 
not  a  party  to  the  difference,  frequently  becomes 
clearly  apparent  either  by  the  drafting  of  a  special  act 
of  mediation  which  is  signed  by  the  States  at  variance 
and  the  mediator,  or  by  the  fact  that  in  the  conven- 
tion between  the  conflicting  States,  which  embodies 
their  understanding,  the  mediator  is  mentioned. 

§  10.  The  Hague  Convention  for  the  Pacific  Settle-  Good 
ment  of  International  Disputes  ^  undertook  in  Articles  and^Medi- 
2-8  the  task  of   making  the  signatory  Powers   have  ^*^"" ,. 

<^  o  ./  according 

recourse    more    frequently    than    theretofore    to    good  to  the 
offices  and  mediation,  and  recommended  a  new  and  biSlon"^" 
particular  form  of  mediation  in  the  following  rules  : —  Son'**" 

(1)  The  contracting  Powers  agreed  before  they  appealed 
to  arms,  to  have  recourse,  as  far  as  circumstances  allowed, 
to  good  offices  or  mediation  (Article  2),  And  independently 
of  this  recourse,  they  considered  it  expedient  and  desirable 
that  contracting  Powers  who  were  strangers  to  the  dispute 
should,  on  their  own  initiative,  offer  their  good  offices  or 
mediation  (Article  3).  A  real  legal  duty  to  offer  good 
offices  or  mediation  was  not  thereby  created  ;  only  the 
expediency  and  desirabihty  of  such  an  offer  was  recognised. 
In  regard  to  the  legal  duty  of  confficting  States  to  ask  for 
good  offices  or  mediation,  it  is  obvious  that,  although 
hterally  such  a  duty  was  agreed  upon,  the  condition  '  as 
far  as  circumstances  allow  '  made  it  more  or  less  illusory, 

^  See  Meurer,  i.  pp.  104-129  ;  Wehberg,  Konimentar,  pp.  10-21  ; 
Higgins,  p.  167;  Barclay,  ProWe«!«,  Nippold,  i.  pp.  21-22;  Scott,  Con- 
pp.   191-197  ;    Lemonon,  pp.   09-73  ;       ferences,  pp.  256-265. 


14     AMICABLE   SETTLEMENT   OF   STATE   DIFFERENCES 

as  it  was  in  the  discretion  of  the  parties  to  judge  for  them- 
selves whether  or  not  the  circumstances  of  the  special  case 
allowed  them  to  have  recourse  to  good  offices  and  mediation. 

(2)  The  contracting  Powers  agreed  that  (Article  3)  a 
right  to  offer  good  offices  or  mediation  existed  for  those  of 
them  who  were  strangers  to  a  dispute,  and  that  this  right 
existed  also  after  the  confficting  parties  had  appealed  to 
arms.  Consequently,  every  contracting  Power,  when  at 
variance  with  another,  be  it  before  or  after  the  outbreak  of 
hostihties,  was  in  duty  bound  to  receive  an  offer  of  good 
offices  or  mediation,  although  it  need  not  accept  it.  And  it 
was  specially  stipulated  that  the  exercise  of  the  right  to  offer 
good  offices  or  mediation  might  never  be  regarded  by  the 
conflicting  States  as  an  unfriendly  act  (Article  3).  It  was 
further  stipulated  that  the  contracting  Powers  considered 
it  their  duty  in  a  serious  confhct  to  remind  the  parties  of 
the  Permanent  Court  of  Arbitration,  and  that  the  advice 
to  have  recourse  to  this  court  might  only  be  considered 
as  an  exercise  of  good  offices  (Article  48,  paragraphs  1 
and  2).  And,  finally,  in  case  of  dispute  between  two 
Powers,  one  of  them  might  always  address  to  the  Inter- 
national Bureau  of  the  Permanent  Court  of  Arbitration  a 
note  containing  a  declaration  that  it  would  be  ready  to 
submit  the  dispute  to  arbitration,  whereupon  the  Bureau 
was  at  once  to  inform  the  other  Power  of  this  declaration 
(Article  48,  paragraphs  3  and  4). 

(3)  Mediation  was  defined  (Article  4)  as  reconcihation 
of  the  opposing  claims  and  appeasement  of  the  feehngs  of 
resentment  between  the  confficting  States,  and  it  was 
specially  emphasised  that  good  offices  and  mediation  have 
exclusively  the  character  of  advice. 

(4)  The  acceptance  of  mediation — and,  of  course,  of 
good  offices,  which  was  not  mentioned — was  not  (Article  7) 
to  have  the  effect  of  interrupting,  delaying,  or  hindering 
mobiUsation  or  other  preparatory  measures  for  war,  or  of 
interrupting  miUtary  operations  when  war  had  broken 
out  before  the  acceptance  of  mediation,  unless  there  should 
be  an  agreement  to  the  contrary. 

(5)  The  functions  of  the  mediator  were  to  be  at  an  end 


GOOD   OFFICES    AND   MEDIATION  15 

(Article  5)  when  once  it  was  stated,  either  by  one  of  the 
conflicting  parties  or  by  the  mediator  himself,  that  the 
means  of  reconciliation  proposed  by  him  were  not  accepted. 
(6)  A  new  and  particular  form  of  mediation  was  recom- 
mended by  Article  8.  Before  appealing  to  arms,  each 
conflicting  State  was  to  choose  a  State  as  umjiire,  to  whom 
it  entrusted  the  mission  of  entering  into  direct  communica- 
tion with  the  umpire  chosen  by  the  other  side  for  the  purpose 
of  preventing  the  rupture  of  pacific  relations.  The  period 
of  the  mandate  extended,  unless  otherwise  stipulated,  to 
thirty  days,  and  during  such  period  the  conflicting  States 
were  to  cease  from  all  direct  communication  on  the  matter 
in  dispute  ;  it  was  to  be  regarded  as  referred  exclusively  to 
the  mediating  umpires,  who  were  to  use  their  best  efforts  to 
settle  it.  Should  such  mediation  not  succeed  in  bringing 
the  confUcting  States  to  an  understanding,  and  a  definite 
rupture  of  pacific  relations  take  place,  the  chosen  umpires 
were  jointly  charged  to  take  advantage  of  any  opportunity 
to  restore  peace. 

§  11.  The  value  of  good  offices  and  mediation  for  vaiue 
the  amicable  settlement  of  international  conflicts,  be  om^es^ 
it  before  or  after  the  parties  have  appealed  to  arms,  *".fi  ^^e^i- 
cannot  be  over-estimated ;  and  the  Hague  Conven- 
tion, which  is  still  in  force  between  the  parties  to 
it,  greatly  enhanced  the  value  of  such  assistance  by 
giving  third  States  a  legal  right  to  tender  it.  Hostihties 
have  been  frequently  prevented  through  the  authority 
and  the  skill  of  mediators,  and  furiously  raging  wars 
have  been  brought  to  an  end  through  good  offices  and 
mediation  of  third  States.^  The  Dogger  Bank  incident 
of  1904  may  be  quoted  as  a  case  in  which  probable  war 
was  averted,  for  it  was  through  the  mediation  of  France 
that  Great  Britain  and  Russia  agreed  upon  the  estab- 
hshment  of  an  International  Commission  of  Inquiry.^ 
And  the  good  offices  of  the  President  of  the  United 

*  See  the  important  cases  of  media-        1700,  and  Bonfils,  Nos.  936-942. 
tion  discussed  by  Calvo,  iii.  §§  1684-  *  See  above,  §  5,  n.  2. 


16  AMICABLE  SETTLEMENT  OF  STATE  DIFFERENCES 

States  of  America  were  the  means  of  bringing  a  war  to 
an  end  by  inducing  Eussia  and  Japan,  in  August  1905, 
to  open  the  negotiations  which  led  to  the  conclusion 
of  the  Peace  of  Portsmouth  on  September  5,  1905. 
Nowadays  the  importance  of  these  means  of  settle- 
ment of  international  differences  is  even  greater  than 
in  the  past.^  The  outbreak  of  war  is  under  the  circum- 
stances and  conditions  of  our  times  no  longer  a  matter 
of  indifference  to  all  except  the  belUgerent  States,  and 
no  State  which  goes  to  war  knows  exactly  how  far  such 
war  may  affect  its  very  existence.  Since  the  World 
War,  this  truth  has  found  expression  in  the  Covenant 
of  the  League  of  Nations,  which  has  devised  new  means 
for  setthng  international  disputes.  But  still,  if  good 
offices  and  mediation  are  interposed  at  the  right  moment, 
they  will  in  many  cases  not  fail  to  effect  a  settlement  of 
a  conflict  which  could  not  be  so  well  settled  by  other 
methods. 

IV 

ARBITRATION 

Grotius,  ii.  c.  23,  §  8— Vattel,  ii.  §  329— Hall,  §  119— Westlake,  i.  pp.  350- 
368— Lawrence,  §  221— Maine,  pp.  210-218— Phillimore,  iii.  §§  3-5— 
Twiss,  ii.  §§  5-6— Taylor,  §§  357-358— Wharton,  iii.  §  316— Hershey, 
Nos.  309-313  — Moore,  vii.  §§  1069-1088  — Bluntschli,  §§  488-498  — 
Heffter,  §  109— Eulmerincq  in  Holtzendorff,  iv.  pp.  30-58— Ullmann, 
§§  154-156— Bonfils,  Nos.  944-969— Despagnet,  Nos.  722-741— Pradier- 
Fod6r6,  vi.  Nos.  2602-2630— M6rignhac,  i.  pp.  448-485— Rivier,  ii.  §  59 
— Calvo,  iii.  §§  1706-1806— Fiore,  ii.  Nos.  1202-1215,  and  Code,  Nos. 
1299-1385— Nys,  ii.  pp.  547-576— Martens,  ii.  §  104— Rouard  de  Card, 
L' Arbitrage  international  (1877)— M6rignhac,  Traits  theorique  et  pratique 
de  I' Arbitrage  (1895)— Moore,  History  and  Digest  of  the  Arbitrations  to 
which  the  United  States  has  been  a  Party,  6  vols.  (1898)— Darby,  Inter- 
national Tribunals,  4th  ed.  (1904)— Dumas,  Les  Sanctions  de  l' Arbitrage 
international  (1905),  and  in  A.J.,  v.  (1911),  pp.  934-957— Nippold,  Die 
Fortbildung  des  Vtrfahrens  in  volkerrechilichen  Streitigkeiten  (1907) — 
Reinsch  in  A.  J.,  v.  (1911),  pp.  604-614— Scott,  Conferences,  pp.  188-253 
— Lapradelle  et  Politis,  liecueil  des  Arbitrages  intemationaux,  i.  (1798- 

^  The  editor  believes  that  the  may  itself  use  its  good  offices  or 
authorwouldhavestill  held  this  view.  mediation  as  a  means  of  settling  a 
Moreover,    the   League    of    Nations       dispute.     See  below,  §§  25b~25g. 


ARBITRATION  17 

1855),  (1905)— Fried,  Hamlhuch  der  Friedenshewegung,  '2nd  ed.  (1911), 
i.  pp.  137184— Morris,  IiUemalional  Arbitralioii  and  ProcedurL  (1911) 
— Lamraasch,  Die  Rechlskraft  iiUemationaler  SchiedsApriiche  (1913),  and 
Die  Lehre  von  der  Schiedsgerichlsbarkeit  (1914) — Balch,  International 
Courts  of  Arbitration  (6th  ed.,  with  an  introduction  and  additional 
notes  by  Thomas  Willing  Balch,  1915) — Barclay,  New  Methods  of  Ad- 
justing International  Disputes  and  the  FtUure  (1917) — Dungern  in  Z.  V., 
vii.  (1913),  pp.  257-271— Jong  van  Beek  en  Donk  in  the  Jahrbuch  dea 
Volkerr edits,  i.  (1913),  pp.  375-403— Balch,  Arbitration  as  a  Term  of 
International  Law  (reprint  from  the  Columbia  Law  Review)  (1915) — 
Penfield  and  Ralston  in  the  Proceedings  of  the  American  Society  of 
International  Law,  ix.  (1916),  pp.  40-62. 

§  12.  Arbitration  is  the  name  for  the  determination  Concep- 
of  difierences  between  States  through  the  verdict  of  bSrafira. 
one  or  more  umpires  chosen  by  the  parties.  As  there 
is  no  central  pohtical  authority  above  the  sovereign 
States,  and  no  such  international  court  as  could  exercise 
jurisdiction  over  them,  State  differences,  unlike  difier- 
ences between  private  individuals,  cannot  as  a  rule  be 
obhgatorily  settled  in  comets  of  justice.  The  only  way 
in  which  a  settlement  of  State  differences  through  a 
verdict  may  be  arrived  at  is  by  the  conflicting  States 
voluntarily  consenting  to  submit  themselves  to  a  verdict 
of  one  or  more  umpires  chosen  by  themselves  for  that 
purpose.^ 

§  13.  It  is,  therefore,  necessary  for  such  conflicting  Treaty  of 
States  as  intend  to  have  the  conflict  determined  by^^^^*"^*' 
arbitration  to  conclude  a  treaty  by  which  they  agree 
to  this  com'se.  Such  a  treaty  of  arbitration  imposes 
an  obhgation  on  both  parties  to  submit  in  good  faith 
to  the  decision  of  the  arbitrators.  Frequently  a  treaty 
of  arbitration  will  be  concluded  after  the  outbreak  of 
a  difference ;  but  it  also  frequently  happens  that 
States  concluding  a  treaty  stipulate  by  the  so-called 
Compromise  Clause,^  that  any  difference  arising  between 
them  respecting  matters  regulated  by  the  treaty  shall 

'  When,   however,    the  proposed       further  means  of  obtaining  a  judicial 
International  Court  of  Justice  has        decision.     See  below,  §  25y. 
been    set    up,    States    will    have    a  '  See  above,  §  3. 

VOL.    II.  B 


18     AMICABLE   SETTLEMENT  OF  STATE   DIFFERENCES 

be  determined  by  arbitration.  Two  or  more  States  can 
also  conclude  a  so-called  general  treaty  of  arbitration,  or 
treaty  of  permanent  arbitration,  stipulating  that  all  or 
certain  kinds  of  differences  arising  in  future  between  them 
shall  be  settled  by  this  method.  Thus  Article  7  of  the 
Commercial  Treaty  between  Holland  and  Portugal  ^  of 
July  5,  1894,  constituted  such  a  general  treaty  of  arbi- 
tration, as  it  stipulated  arbitration,  not  only  for  differ- 
ences respecting  matters  of  commerce,  but  for  all  kinds 
of  future  differences  which  did  not  concern  their  inde- 
pendence or  autonomy.  Until  the  Hague  Peace  Con- 
ference of  1899,  however,  general  treaties  of  arbitration 
were  not  numerous.  Public  opinion  everywhere  was 
aroused  in  their  favour  through  the  success  of  this  con- 
ference, with  the  result  that  from  1900  to  the  present  day 
many  general  arbitration  treaties  have  been  concluded.^ 
Who  is  to  §  14.  States  which  conclude  an  arbitration  treaty 
ar  1  ra  e .  j^^^^^  ^^  agree  upou  the  arbitrators.  If  they  choose  a 
third  State,  they  have  to  conclude  a  treaty  {receptum 
arbitri),  by  which  they  appoint  that  State  as  arbitrator, 
and  it  accepts  the  appointment.  The  appointed  State 
chooses  on  its  own  behalf  those  umpires  who  actually 
serve  as  arbitrators.  It  can  happen  that  the  conflict- 
ing States  choose  a  head  of  a  third  State  as  arbitrator. 
But  he  never  himself  investigates  the  matter ;  he 
chooses  one  or  more  individuals,  who  make  a  report 
and  propose  a  verdict,  which  he  pronounces.  And, 
further,  the  conflicting  States  may  agree  to  entrust  the 
arbitration  to  any  other  individual,  or  to  a  body  of 
individuals,  a  so-called  arbitration  committee  or  com- 
mission. Thus  the  arbitration  of  1899  in  regard  to  the 
Venezuelan  Boundary  Dispute  between  Great  Britain, 
Venezuela,  and  the  United  States  was  conducted  by  a 
commission,  sitting  at  Paris,  consisting  of  American 

1  See  Martens,  N.R.G.,  2nd  Ser.  xxii.  p.  591. 
»  See  below,  §  17. 


ARBITRATION  19 

and  English  members  and  the  Russian  Professor  von 
Martens  as  president.  And  the  Alaska  Boundary- 
Dispute  between  Great  Britain  and  the  United  States 
was  settled  in  1903,  through  the  award  of  a  connnis- 
sion,  sitting  at  London,  consisting  of  American  and 
Canadian  members,  with  Lord  Alverstone,  Lord  Chief 
Justice  of  England,  as  president. 

§  15.  The  treaty  of  arbitration  should  stipulate  the  On  what 
principles  according  to  which  the  arbitrators  have  to  ArStra-^ 
give  their  verdict.     These  principles  may  be  the  general  ^g^j^^j 
rules  of  International  Law,  or  they  may  be  the  rules  dooide. 
of  any  Municipal  Law  chosen  by  the  conflicting  States, 
or  rules  of  natural  equity,  or  rules  specially  stipulated 
in  the  treaty  of  arbitration  for  the  special  case.^    Some- 
times   the   treaty   of    arbitration   stipulates    that   the 
arbitrators  shall  compromise  the  conflicting  claims  of 
the  parties  without  resorting  to  special  rules  of  law. 
In  default  of  any  express  provision,  it  must  be  pre- 
sumed that  the  verdict  is  to  be  given  according  to 
principles  of  International  Law,^  or  if  there  are  none 
apphcable,  according  to  rules  of  equity.     The  treaty 
generally  stipulates  also  rules  of  procedure  to  be  followed 
by   the   arbitrators.     If   it   does   not,    the   arbitrators 
themselves  have  to  work  them  out  and  communicate 
them  to  the  parties. 

§  16.  An  arbitral  verdict  ^  is  final  if  the  arbitration  Binding 
treaty  does  not  stipulate  the  contrary,  and  is  binding  ^rbkrai 
upon   the   parties.     The   members   of   the   League   of  Verdict. 
Nations  have  agreed  by  Article  13  of  the  Covenant  to 
carry  it  out  in  good  faith,  and  not  to  go  to  war  with  a 

*  See  Lammasch,  Die  Rechtskraft  to  law,  and  not  according  to  other 
intemationaler  Schiedsiprilche  {\^\^) ,  principles,  is  very  ably  set  out  in 
pp.  36-67,  and  Die  Lehre  von  der  Balch,  A  rhitration  as  a  Term  of  In- 
Schiedsgerichtsbarkeit  (\9l'i),-pp- ^lo-  temational  Lam  (reprint  from  the 
186.     See  also  below,  §  335,  concern-  Columbia  Law  Review)  (1915). 

ing  the 'Three  Rules  of  Washington.'  ^  Its  effect  is  discussed  in  all  its 

*  That  as  a  rule  arbitrators  are  details  in  Lammasch,  Die  Rechls- 
bound  to  give  their  award  according       kraft,  etc.,  pp.  91-128. 


20     AMICABLE  SETTLEMENT   OF  STATE  DIFFERENCES 

member  complying  therewith.  As,  however,  no  central 
authority  exists  above  the  States  to  execute  the  verdict 
against  a  State  refusing  to  submit,  in  case  of  such  a 
refusal  the  other  party  has  the  right  to  enforce  the 
arbitral  decision  by  compulsion.  Moreover,  under 
Articles  13  and  16  of  the  Covenant  of  the  League  of 
Nations,  in  the  event  of  failure  to  carry  out  an  award,  the 
Council  is  to  propose  what  steps  should  be  taken  to 
give  efiect  to  it,  and  the  delinquent  member  is  hable 
to  the  penalties  for  breach  of  covenant  stipulated  in 
Article  16.^  Yet  it  is  ob\aous  that  an  arbitral  verdict  is 
only  binding  provided  ^  that  the  arbitrators  have  in 
every  way  fulfilled  their  duty  as  umpires,  and  have 
been  able  to  find  their  verdict  in  perfect  independence. 
Should  they  have  been  bribed,  or  not  followed  their 
instructions,  should  their  verdict  have  been  given 
under  the  influence  of  coercion  of  any  kind,  or  should 
one  of  the  parties  have  intentionally  and  mahciously 
led  the  arbitrators  into  an  essential  material  error,  the 
arbitral  verdict  would  have  no  binding  force  whatever. 
Thus  the  award  given  in  1831  by  the  King  of  Holland 
in  the  North-Eastern  Boundary  Dispute  betw^een  Great 
Britain  and  the  United  States  of  America  was  not  con- 
sidered binding  by  the  parties,  because  the  arbitrator 
had  transgressed  his  powers.^  For  the  same  reason. 
Boh  via  refused  to  submit  to  the  award  given  in  1909  by 
the  President  of  Argentina  in  her  boundary  dispute 
with  Peru.*  And  in  October  1910,  the  Permanent 
Court  of  Arbitration  at  the  Hague,  deciding  the  case 
of  the  United  States  of  America  against  the  United 

*  See  above,  vol.  i.  §  167^'.  (1910),  pp.  5  and  595  ;  Casusus  and 

'  The  question  of  an  appeal  against  M'Kenney  in  the  Proceeding e  of  the 

an  arbitral  award  is  discussed  in  a  American    Society    of   InterTiational 

masterly   way    by   Lammasch,    Die  Law,  vi.  (1912),  pp.  59  and  63. 
Rechtskraft    intemationaler   Schieds-  ^  See    Moore,    vii.    §    1082,    and 

spriiche  (1913),  pp.  129-209,  and  Die  Moore,  Arhitrationt,  i.  pp.  85-161. 
Lehre  van  der  Schied$gerichtsharkeit  *  See  Fiore  in  R.G.,  xvii.  (1910), 

(1914),  pp.  212-224.     See  also  Donker  pp.  225-256,  and  Martens,  N.R.G., 

Curtiusand  Nys  in  R.I.,  2nd  Ser.  xii.  3rd  Ser.  iii.  p.  53. 


ARRTTKATTON  21 

States  of  Venezuela  concerning  the  claims  of  the  Orinoco 
Steamship  Company,  annulled,^  with  regard  to  certain 
points,  a  previous  arbitration  award  given  by  Mr.  Barge. 

§  17.  It    is    often    maintained    that    every    possible  WhatDif- 
difference  between  States  could  not  be  determined  by  cln  bT^ 
arbitration,    and,    consequently,    efforts   are   made   to  fiecided 
distinguish   those   groups   of    State   differences   which  tration. 
are   determinable   by   arbitration  from  others.    Now, 
although  all  States  may  never  consent  to  have  all 
possible  differences  decided  by  arbitration,  theoretically 
there  is  no  reason  to  distinguish  between  differences 
on  the  ground  that  some  can,  and  others  cannot,  be 
decided   through   arbitration.    For   there   can   be   no 
doubt  that,  the  consent  of  the  parties  once  given,  every 
possible  difference  might  be  settled  through  arbitra- 
tion, either  by  the  verdict  being  based  on  rules  of 
International  Law,  or  rules  of  natural  equity,  or  by 
opposing  claims  being  compromised. 

But,  differing  from  the  theoretical  question  as  to 
what  differences  are,  and  are  not,  determinable  by 
arbitration,  is  the  question  what  kind  of  State  differ- 
ences ought  always  to  be  settled  in  this  manner.  The 
latter  question  was  answered  by  Article  16  of  the  Hague 
Convention  of  1899,  and  by  Article  38  of  the  Hague 
Convention  of  1907  for  the  Pacific  Settlement  of  Inter- 
national Disputes,  the  contracting  Powers  therein 
recognising  arbitration  as  the  most  efficacious,  and  at 
the  same  time  the  most  equitable,  means  of  determining 
differences  of  a  judicial  character  in  general,  and  in 
especial  differences  regarding  the  interpretation  or 
application  of  international  treaties.  In  1903,  Great 
Britain  and  France,  following  the  suggestion  of  this 
Article  16,  concluded  a  treaty  in  which  they  agreed 
to  settle  by  arbitration  all  such  differences  of  a  legal 
nature   as   did   not   affect   their  vital   interests,   their 

1  See  Martens,  N.R.G.,  3rd  Ser.  iv.  p.  79. 


22     AMICABLE   SETTLEMENT  OF   STATE   DIFFERENCES  jM 

independence,  their  honour,  or  the  interests  of  third 
States,  and  many  other  States  followed  the  lead.  Great 
Britain,  in  the  following  years,  entered  into  such  ^  arbi- 
tration treaties  with  Spain,  Italy,  Germany,  Sweden, 
Norway,  Portugal,  Switzerland,  Austria-Hungary, 
Holland,  Denmark,  the  United  States  of  America, 
Colombia,  and  Brazil.  These  agreements  were  con- 
cluded for  five  years  only,  but  many  of  them  have 
been  renewed. 

Yet  there  is  a  flaw  in  all  these  treaties,  because  the 
decision  as  to  whether  a  difference  is  of  a  legal  nature 
or  not,  is  left  to  the  discretion  of  the  parties.  Cases 
have  happened  in  which  one  party  has  claimed  to  have 
a  difference  settled  by  arbitration  on  account  of  its 
legal  nature,  whereas  the  other  party  has  denied  its 
legal  nature,  and,  therefore,  refused  to  go  to  arbitra- 
tion. For  this  reason  the  arbitration  treaties  signed  on 
August  3,  1911,  between  the  United  States  of  America 
and  Great  Britain  and  between  the  United  States  of 
America  and  France  would  have  been  epoch-making, 
had  they  been  ratified,  since  Article  3  provided  that,  in 
cases  where  the  parties  disagreed  as  to  whether  or  not 
a  difference  was  subject  to  arbitration  under  the  treaty 
concerned,  the  question  should  be  submitted  to  a  Joint 
High  Commission  of  Inquiry  ;  and  that,  if  all,  or  all 
but  one,  of  the  members  of  that  commission  decided  the 
question  in  the  affirmative,  the  case  should  be  settled  by 
arbitration.  This  article  was,  however,  struck  out  by  the 
American  Senate,  and  so  these  treaties  were  not  ratified.^ 

It  should  be  mentioned  that,  whereas  most  arbitra- 

^  It  ia  to  be  noted  that  the  arbitra-  Law;,  vi.  (1912),  pp.  87-114;  Vlietinck 

tion  treaty  between  Great  Britain  and  in  li.I.,  2nd    Ser.    xv.    (1913),    pp, 

Uruguayof  April  18,1918 (Treaty Ser.  307-332   and   417-444.      As   regards 

(1919),  No.  3,  Cmd.  150)  is  of  a  differ-  the     so-called     Bryan     Arbitration 

ent  variety,  since  it  stipulates  arbi-  Treaties,  which  are  not  all  arbitra- 

tration  for  all  disputes  of  every  kind.  tion    treaties,    but   treaties   making 

*  See  Dennis  in  A.J.,  vi.  (1912),  provision   for    the    appointment    of 

pp.    614-628  ;     Proceedings    of    the  International    Commissions    of    In- 

American    Society   of   International  quiry,  see  above,  §  5. 


ARBITRATION  23 

tion  treaties  limit  arbitration  in  one  or  more  ways, 
exempting  cases  which  concern  the  independence,  the 
honour,  or  the  vital  interests  of  the  parties,  Argentina  ^ 
and  ChiU  in  1902,  Denmark  and  Holland  in  1904, 
Denmark  and  Italy  in  1905,  Denmark  and  Portugal  in 
1907,  xVrgcntina  and  Italy  in  1907,  the  Central  American 
Kepubhcs  of  Costa  Rica,  Guatemala,  Honduras,  Nica- 
ragua, and  San  Salvador  in  1907,  Italy  and  Holland  in 
1909,  and  Great  Britain  and  Uruguay  in  1918,  entered 
into  general  arbitration  treaties  according  to  which 
such  cases  have  not  been  excluded  from  settlement  by 
arbitration.^ 

§  17a.  The  validity  of  existing  treaties  of  arbitra-  Arbitra- 
tion has  not  been  affected^  by  the  Covenant  of  the  League  Jj^°"  ""^^"^ 
of  Nations.     Indeed,  that  Covenant,  while  giving  added  Covenant 
importance  to  arbitration  as  a  means  of  settling  inter-  Lague  of 
national  disputes,  has  made  use  of  existing  machinery.  Nations. 
For  by  Articles  12  and  13  the  members  agreed  that  if 
there  should  arise  between  them  a  dispute  hkely  to 
lead  to  a  rupture,  they  would  submit  it  either  to  arbi- 
tration or  to  inquiry  by  the  Council.     If  they  referred 
it  to  arbitration,  as  they  undertook  to  do  if  it  was  one 
recognised  by  them  as  suitable  for  arbitration  and  in- 
capable of  satisfactory  settlement  by  diplomacy,  they 
agreed  not  to  resort  to  war  until  three  months  after 
the  award,  which  was  to  be  made  within  reasonable 
time.    Legal  differences  and  those  regarding  the  inter- 
pretation  of   treaties   had   already   been   selected   by 
Hague  Convention  i.  as  suitable  for  arbitration ;    and 

*  Earlier  than  this,   on  July  23,  the  conatitution  of   either  country, 

1898 — see  Martens,  A^.  i?.  G. ,  2nd  Ser.  See  also  above,  §  3,  concerning  tha 

xiix.  p.  137 — Argentina  and  Italy,  Compromise  Clause, 

and    on    November    6,     1899  —  see  *  A    list    of    all    the    arbitration 

Martens,    X.B.O.,  2nd  iSer.    xxxii.  treaties    which    had    been    entered 

p.    404  —  Argentina  and   Paraguay  into  by  the  several  States  between 

had  concluded  treaties  according  to  the  First  Hague  Peace  Conference 

which  all  differences  without  excep-  of  1899  and  1911  is  to  be  found  in 

tion  were  to  be  settled  by  arbitra-  Fried,  op.  cit.,  p.  185. 

tion,  provided  they  did  not  affect  ^  See  Article  21. 


24     AMICABLE   SETTLEMENT  OF  STATE   DIFFERENCES 

they  are  again  recommended  by  the  Covenant  for 
similar  treatment.  '  Disputes  as  to  the  interpretation 
of  a  treaty,  as  to  any  question  of  international  law,  as 
to  the  existence  of  any  fact  which  if  estabhshed  would 
constitute  a  breach  of  any  international  obligation,  or 
as  to  the  extent  and  nature  of  the  reparation  to  be 
made  for  any  such  breach,  are  declared  to  be  among 
those  which  are  generally  suitable  for  submission  to 
arbitration/  The  Covenant  does  not  estabhsh  a  new 
arbitration  tribunal  for  such  disputes,  but  refers  them 
to  '  the  court  agreed  on  by  the  parties  to  the  dispute 
or  stipulated  in  any  convention  existing  between 
them/  ^ 
Value  of  §18.  Thus  arbitration  every  day  becomes  more  and 
tion.  more  important.  History  proves  that  m  antiqmty  and 
during  the  Middle  Ages  it  was  occasionally  ^  made  use 
of  as  a  peaceable  means  of  setthng  international  differ- 
ences. But,  although  an  International  Law  made  its 
appearance  in  modern  times,  during  the  sixteenth, 
seventeenth,  and  eighteenth  centuries  very  few  cases 
of  arbitration  occurred.  It  was  not  until  the  end  of 
the  eighteenth  century  that  it  was  frequently  made  use 
of.  There  were  177  cases  from  1794  to  the  end  of  1900.^ 
This  number  shows  that  the  inclination  of  States  to 
agree  to  arbitration  had  increased,  and  more  recent 
developments  show  that  arbitration  has  a  great  future. 
States  and  the  public  opinion  of  the  whole  world  have 
become  more  and  more  convinced  that  there  are  a 
good  many  international  differences  which  may  well 
be    determined    by    arbitration    without    any    danger 

^  As  to  the  manner  in  which  the  du   Droit    international   (1894),    pp. 

award  may  be  enforced,  and  the  cir-  52-61. 
cumstances  under  which  a  member 

of  the  League  has  agreed  not  to  re-  *  See  La  Fontaine,  Histoire  8om- 

sort   to  war,  see  above,  §    16,    and  maire  et  chronologique  des  Arbitrages 

vol.  i.  §  167^.  intemationaux  in  R.I.,  2nd  Ser.  iv. 

*  See   examples  in  Calvo,   iii.   §§  pp.  349,  558,  623.     See  also  Scott, 

1707-1712,  and  in  Nys,  Les  Oriyines  Conferences,  pp.  188-253. 


ARBITRATION  25 

whatever  to  the  national  existence,  independence, 
dignity,  and  prosperity  of  the  States  concerned.  Akeady 
before  the  World  War,  a  net  of  so-called  peace  societies 
had  spread  over  the  whole  world,  and  their  members 
unceasingly  worked  for  the  promotion  of  arbitration. 
The  parhaments  of  several  comitries  had  repeatedly 
given  their  vote  in  its  favour  ;  and  the  Hague  Peace 
Conference  of  1899  created  a  Permanent  Court  of 
Arbitration,  a  step  by  which  a  new  epoch  in  the  develop- 
ment of  International  Law  was  inaugurated.  It  was 
certain  that  arbitration  would  gradually  increase  its 
range,  although  the  time  was  not  then,  and  is  not  now, 
in  sight  when  all  international  difierences  will  find  their 
settlement  by  arbitration. 

The  institution  of  the  Permanent  Court  of  Arbitra- 
tion at  the  Hague  stood  before  the  World  W^ar  between 
a  cross-fire  of  impatient  pacifists  and  cynical  pessimists. 
Because  a  number  of  wars  had  been  fought  since  the 
estabhshment  of  the  Permanent  Court,  impatient 
pacifists  were  in  despair  and  considered  the  institution 
of  the  Court  of  Arbitration  a  failure,  whereas  cynical 
pessimists  triumphantly  pointed  to  the  fact  that  the 
millemiiimi  seemed  to  be  as  far  distant  as  ever.  But 
the  calm  observer  of  the  facts  who  possessed  insight 
into  the  process  of  historical  development,  had  no 
cause  to  despair,  for,  compared  with  some  generations 
before,  arbitration  was  an  estabhshed  force  which  daily 
gained  more  power  and  influence.  So  it  was  to  be 
expected  that  the  close  of  the  World  War  would  witness 
a  strong  movement  of  opinion  in  favour  of  arbitration, 
and  this  expectation  was  justified.  The  Covenant  of 
the  League  of  Nations  sets  arbitration  in  the  forefront 
of  its  plans  for  averting  war,  and  existing  arbitration 
treaties  gain  a  new  importance.  It  is  therefore  desir- 
able to  discuss  in  some  detail  arbitration  according  to 
Hague^Convention  i. 


26     AMICABLE   SETTLEMENT  OF  STATE   DIFFERENCES 


ARBITRATION  ACCORDING  TO  THE   HAGUE   CONVENTION 

Hershey,  Nos.  314-320  — Ullmann,  §§  155-156  —  Bonfils,  Nos.  953i-955^— 
Nys,  ii.  pp.  568-572 — Despagnet,  Nos.  742-746  bis — M6rignhac,  i.  pp. 
486-540— Holls,  The  Peace  Conference  at  the  Hague  (1900)— Martens, 
La  Conference  de  la  Paix  d  la  Haye  (1900) — M6rignhac,  La  Conference 
intemationale  de  la  Paix  (1900) — Fried,  Die  zweite  Haager  Konferenz 
(1908)  — Meurer,  i.  pp.  299-372  —  Soott,  Conferences,  pp.  286-385— 
Higgins,  pp.  164-179— L6monon,  pp.  188-219— Nippold,  i.  pp.  36-231— 
Wehberg,  Kommentar,  pp.  46-164  —  Lamraasch,  Die  Lehre  von  der 
Schiedsgerichtsbarkeit  (1914) — Strupp,  Die  intemationale  Schiedsgerichts- 
barkeit  (1914). 

Arbitral  §  19.  Of  the  niiiety-seven  articles  of  the  Hague  Con- 
general'°  veiition  fof  the  Pacific  Settlement  of  International 
Disputes,  no  fewer  than  fifty-four — namely,  Articles 
37-90 — deal  with  arbitration  in  four  chapters,  headed 
'  On  Arbitral  Justice,"  *  On  the  Permanent  Court  of 
Arbitration,'  '  On  Arbitral  Procedure,'  and  '  On  Arbi- 
tration by  Summary  Procedure.'  The  first  chapter, 
Articles  37-40,  contains  rules  on  arbitral  justice  in 
general,  which,  however,  with  one  exception,  are  not 
of  a  legal  but  of  a  merely  doctrinal  character.  Thus 
the  definition  in  Article  37,  '  international  arbitration 
has  for  its  object  the  determination  of  controversies 
between  States  by  judges  of  their  own  choice  and  upon 
the  basis  of  respect  for  law,'  is  as  doctrinal  as  the  asser- 
tion of  Article  38  :  'In  questions  of  a  judicial  character, 
and  especially  in  questions  regarding  the  interpreta- 
tion or  application  of  international  treaties  or  conven- 
tions, arbitration  is  recognised  by  the  contracting 
Powers  as  the  most  efficacious  and  at  the  same  time 
the  most  equitable  method  of  deciding  controversies 
which  have  not  been  settled  by  diplomatic  methods. 
Consequently  it  would  be  desirable  that,  in  disputes 
regarding  the  above-mentioned  questions,  the  con- 
tracting Powers  should,  if  the  case  arise,  have  recourse 


ARBITRATION  ACCORDING   TO   HAGUE   CONVENTION       27 

to  arbitration,  in  so  far  as  circumstances  permit/  And 
the  provision  of  Article  39,  that  an  agreement  of  arbi- 
tration may  be  made  respecting  disputes  already  in 
existence,  or  arising  in  the  future,  and  may  relate  to 
every  kind  of  controversy,  or  solely  to  controversies  of 
a  particular  character,  is  as  doctrinal  as  the  reservation 
of  Article  40,  which  runs  :  *  Independently  of  general 
or  special  treaties  imposing  expressly  the  obhgation  to 
have  recourse  to  arbitration  on  the  part  of  any  of  the 
contracting  Powers,  these  Powers  reserve  to  themselves 
the  right  to  conclude  new  general  or  special  agreements 
with  a  view  to  extending  obhgatory  arbitration  to  all 
cases  which  they  consider  possible  to  submit  to  it/ 
The  only  rule  of  legal  character  is  that  of  Article  37 
(second  paragraph),  enacting  the  already  existing 
customary  rule  of  International  Law^,  that  *  the  agree- 
ment of  arbitration  imphes  the  obhgation  to  submit 
in  good  faith  to  the  arbitral  sentence/ 

On  the  signatory  Powers  no  obhgation  to  submit  any 
difference  to  arbitration  was  imposed.  Even  differ- 
ences of  a  judicial  character,  and  especially  those  regard- 
ing the  interpretation  or  apphcation  of  treaties  (for  the 
settlement  of  which  the  signatory  Powers,  in  Article 
38,  acknowledged  arbitration  to  be  the  most  efficacious 
and  at  the  same  time  the  most  equitable  method),  had 
not  necessarily  to  be  submitted  to  arbitration.  Yet 
the  principle  of  compulsory  arbitration  for  a  limited 
number  of  international  differences  was  by  no  means 
negatived  by  the  Hague  Peace  Conferences,  especially 
not  by  the  Second  Conference. 

The  principle  found  indirect  recognition  in  the  Con- 
vention respecting  the  Limitation  of  the  Employment 
of  Force  for  the  Eecovery  of  Contract  Debts.^  In 
Article    1    of   this   convention,   which   stipulates   that 

*  See  above,  vol.  i.  §  135,  where  the  so-called  Drago  Doctrine  is  likewise 
discussed. 


28     AMICABLE   SETTLEMENT  OF   STATE   DIFFERENCES 

recourse  to  the  employment  of  force  for  the  recovery  of 
contract  debts  claimed  from  the  Government  of  one 
coimtry  by  the  Government  of  another  country  as 
being  due  to  its  nationals  is  not  allowed  unless  the 
debtor  State  refuses  arbitration,  compulsory  arbitration 
has  been  victorious. 

Moreover,  although  it  was  not  possible  to  agree  upon 
the  inclusion  in  Convention  i.  of  any  stipulation  embody- 
ing compulsory  arbitration  for  a  number  of  difierences, 
the  principle  itself  was  fully  recognised,  and  the  Final 
Act  of  the  Second  Peace  Conference  included,  therefore, 
a  declaration  that  the  conference  '  is  unanimous  (1) 
in  admitting  the  principle  of  compulsory  arbitration ; 
(2)  in  declaring  that  certain  disputes,  in  particular 
those  relating  to  the  interpretation  and  appHcation  of 
international  agreements,  may  be  submitted  to  com- 
pulsory arbitration  without  any  restriction." 

There  were,  therefore,  reasonable  grounds  for  the  hope 
and  expectation  that  one  of  the  future  Peace  Confer- 
ences would  find  a  way  out  of  the  difficulty,  and  come 
to  an  agreement  upon  compulsory  arbitration  for  a 
limited  number  of  international  differences.^ 
Arbitra-        §  20.  According  to  Article  52,  the  conflicting  States 
Treaty      which  rcsort  to  arbitration  sign  a  special  Act,  the  com- 
^"^  f^  t  W^^^^^^  which  clearly  defines :  the  subject  of  the  dispute; 
of  Arbi-    the  time  allowed  for  appointing  the  arbitrators ;    the 
form,  order,   and  time  in  which  the  communications 
referred  to  in  Article  63  must  be  made  ;  the  sum  which 
each  party  must  deposit  in  advance  to  defray  expenses  ; 
the    manner    of    appointing    arbitrators    (if    there    be 
occasion)  ;    any  special  powers  which  may  eventually 
belong  to  the  tribunal,  where  it  shall  meet,  the  languages 
to  be  used,  and  any  special  conditions  upon  which  the 

^  See  Scott,  Conferences, 'p^'-  319-  encea  concerning  compuleoiyarb itra- 
385,  where  the  proceedings  of  both  tion  are  sketched  in  a  masterly  and 
the  First  and  Second  Peace  Confer-        very  lucid  style. 


ARBITRATION  ACCORDING   TO   HAGUE  CONVENTION       29 

parties  may  agree.  iShould,  however,  the  conflicting 
States  prefer  it,  the  Permanent  Court  at  the  Hague  is 
competent  to  draw  up  and  settle  the  compromis,  and 
the  court  is  likewise  in  some  other  cases  competent  to 
settle  the  cotnpromis  (Articles  53-54).  The  parties  may 
agree  to  have  recourse  to  the  Permanent  Court  of 
Arbitration  which  was  instituted  by  the  convention ;  ^ 
but  they  may  also  assign  the  arbitration  to  one  or  several 
arbitrators  chosen  by  them,  either  from  the  members 
of  the  Permanent  Court  of  Arbitration,  or  otherwise 
(Article  55).  If  they  choose  a  head  of  a  State  as  arbi- 
trator, the  whole  of  the  arbitral  procedure  is  to  be 
determined  by  him  (Article  56).  If  they  choose  several 
arbitrators,  an  umpire  is  to  preside,  but  in  case  they 
have  not  chosen  an  umpire,  the  arbitrators  are  to  elect 
one  of  their  own  number  as  president  (Article  57).  If 
the  compratnis  is  settled  by  a  commission,  as  contem- 
plated by  Article  54,  in  default  of  an  agreement  to  the 
contrary,  the  commission  itself  shall  form  the  arbitra- 
tion tribunal  (Article  58).  In  case  of  death,  resigna- 
tion, or  disabihty  of  one  of  the  arbitrators  from  any 
cause,  his  place  is  to  be  filled  in  accordance  with  the 
method  of  his  appointment  (Article  59).  The  place  of 
session  of  the  arbitrators  is  to  be  determined  by  the 
parties  ;  and  failing  this,  is  to  be  the  Hague.  It  may 
not  be  changed  by  the  arbitrators  without  the  consent 
of  the  parties ;  and  may  only  be  on  the  territory  of  a 
third  State  with  the  latter's  consent  (Article  60).  The 
International  Bureau  of  the  Com't  at  the  Hague  is 
authorised  to  put  its  offices  and  its  staff  at  the  disposal 
of  parties  w'hich  have  preferred  to  bring  their  dispute 
before  arbitrators  other  than  the  Permanent  Court  of 
Arbitration  (Article  47). 

§  21.  The    parties    may    agree   upon   such    rules    of 
arbitral  procedure  as  they  like.     If  they  fail  to  stipulate 

*  Details  have  been  given  above,  vol.  i.  §§  472-476. 


30     AMICABLE   SETTLEMENT  OF  STATE  DIFFERENCES 

Procedure  Special  lulcs  of  proceduie,  the  following  rules  are  valid, 
befor",  whether  the  parties  have  brought  their  case  before  the 
theAr-  Permanent  Coiu't  of  Arbitration  or  have  chosen  other 
Tribunal,  arbitrators  (Article  Dl)  : — 

(1)  The  parties  may  appoint  counsel  or  advocates 
for  the  defence  of  their  rights  before  the  tribunal.  They 
may  also  appoint  delegates  or  special  agents  to  attend 
the  tribmial  as  intermediaries  between  them  and  the 
tribunal.  The  members  of  the  Permanent  Court,  how- 
ever, may  not  act  as  agents,  counsel,  or  advocates 
except  on  behalf  of  the  Power  which  has  appointed 
them  members  of  the  court  (Article  62). 

(2)  The  tribunal  selects  the  languages  for  its  o^vn 
use  and  for  use  before  it,  unless  the  co77ipromis  has 
specified  them  (Article  61). 

(3)  As  a  rule  there  are  two  distinct  stages  :  written 
pleadings  and  oral  discussion.  The  written  pleadings 
consist  of  cases,  counter-cases,  and,  if  necessary,  rephes, 
communicated  by  the  respective  agents  to  the  members 
of  the  tribunal  and  to  the  opposite  party ;  all  papers 
and  documents  relied  on  must  be  annexed.  The  plead- 
ings are  to  be  communicated  either  directly,  or  through 
the  International  Bureau,  in  the  order  and  within  the 
time  fixed  by  the  com'promis  (Article  63).  A  duly 
certified  copy  of  every  document  produced  by  one 
party  must  be  communicated  to  the  other  party  (Article 
64).  Unless  special  circumstances  arise,  the  tribunal 
does  not  meet  until  the  pleadings  are  closed  (Article  65). 

(4)  Upon  the  written  pleadings  follows  the  oral  dis- 
cussion in  court ;  it  consists  of  the  oral  development 
of  the  pleas  of  the  parties  (Article  63).  The  discussions 
are  under  the  direction  of  the  president  of  the  tribunal, 
and  are  pubhc  only  if  it  be  so  decided  by  the  tribunal 
with  the  consent  of  the  parties.  Minutes  of  the  dis- 
cussion are  to  be  drawn  up  by  secretaries  appointed 
by  the  president,  and  only  these  official  minutes,  which 


ARBITRATION   ACCORDING   TO   HAGUE   CONVENTION       31 

are  signed  by  the  president  and  one  of  the  secretaries, 
are  authentic  (Article  66).  During  the  discussion  in 
court  the  agents  and  counsel  of  the  parties  are  authorised 
to  present  to  the  tribunal  orally  all  the  arguments  they 
may  think  expedient  in  support  of  their  case.  They 
are  likewise  authorised  to  raise  objections,  and  to  make 
incidental  motions,  but  the  decisions  of  the  tribunal  on 
these  objections  and  motions  are  final,  and  cannot  form 
the  subject  of  any  further  discussion  (Articles  70,  71). 
Every  member  of  the  tribunal  may  put  questions  to 
the  agents  and  counsel  of  the  parties,  and  demand 
explanations  from  them  on  doubtful  points  ;  but  such 
questions  or  other  remarks  made  by  members  of  the 
tribunal  may  not  be  regarded  as  expressions  of  opinion 
(Article  72).  The  tribunal  may  always  require  from 
the  agents  of  the  parties  all  necessary  explanations  and 
the  production  of  all  papers,  and  in  case  of  refusal  the 
tribunal  takes  note  of  it  in  the  minutes  (Articles  69). 

^Vhenever  a  doubt  arises  as  to  the  competence  of  the 
tribimal,  the  tribunal  itself  is  authorised  to  decide  the 
question,  by  interpretation  of  the  compromis  and  other 
relevant  papers  and  documents,  and  by  the  apphcation 
of  the  principles  of  law  (Article  73). 

During  the  discussion  in  court — Article  67  says,  '  after 
the  close  of  the  pleadings  ' — the  tribunal  may  refuse  to 
admit  fresh  papers  and  documents  which  one  party  may 
desire  to  submit  to  the  tribunal  without  the  consent 
of  the  other  party  (Article  67),  but  must  admit  fresh 
papers  and  documents  when  both  parties  agree  to  their 
submission.  On  the  other  hand,  the  tribunal  is  always 
competent  to  take  into  consideration  fresh  papers  and 
documents  to  which  its  attention  is  drawn  by  the 
agents  or  counsel  of  the  parties,  and  in  such  cases  the 
tribmial  may  require  production  of  the  papers  and  docu- 
ments, but  it  is  at  the  same  time  obhged  to  make  them 
known  to  the  other  party  (Article  68). 


32     AMICABLE   SETTLEMENT  OF  STATE  DIFFERENCES 


Award. 


The  parties  must  supply  the  tribunal,  within  the 
widest  limits  they  may  think  practicable,  with  all  the 
information  required  for  deciding  the  dispute  (Article 
75).  For  the  service  of  all  notices  by  the  tribunal,  or 
the  collection  of  evidence,  in  the  territory  of  a  third 
contracting  Power,  the  tribunal  apphes  direct  to  its 
Government,  which  must  assist  with  the  means  at  its 
disposal  according  to  Municipal  Law,  unless  the  request 
seems  to  impair  its  own  sovereign  rights  or  its  safety. 
Instead,  however,  of  making  a  direct  application  to  a 
third  Powder,  the  tribunal  may  always  invoke  the  aid 
of  the  Power  on  whose  territory  it  sits  (Article  76).  As 
soon  as  the  agents  and  counsel  of  the  parties  have  sub- 
mitted all  explanations  and  evidence  in  support  of  their 
case,  the  president  declares  the  discussion  closed  (Article 
77). 
Arbitral  §  22.  The  arbitral  award  is  given  after  dehberation 
behind  closed  doors,  and  the  proceedings  remain  secret ; 
the  members  of  the  tribunal  vote,  and  the  majority 
of  the  votes  makes  the  decision  of  the  tribunal  (Article 
78).  The  decision,  accompanied  by  a  statement  of  the 
considerations  upon  which  it  is  based,  is  to  be  drawn 
up  in  writing,  to  recite  the  names  of  the  arbitrators, 
and  to  be  signed  by  the  president  and  the  registrar,  or 
the  secretary  acting  as  the  registrar  (Article  79).  The 
award  is  read  out  at  a  public  meeting  of  the  tribunal, 
the  agents  and  counsel  of  the  parties  having  been  duly 
summoned  to  attend  (Article  80). 

§  23.  The  award,  when  duly  pronounced  and  notified 
to  the  agents  of  the  parties,  decides  the  dispute  finally 
and  without  appeal  (Article  81).  Any  dispute  arising 
between  the  parties  as  to  its  interpretation  or  execu- 
tion must,  in  default  of  an  agreement  to  the  contrary, 
be  submitted  to  the  tribunal  which  pronounced  it 
(Article  82).  The  parties  may,  however,  beforehand 
stipulate  in  the  compromis  the  possibility  of  an  appeal. 


Binding 
Force  of 
Awards. 


ARBITRATION   ACCORDING   TO   HAGUE   CONVENTION       33 

In  such  case,  unless  the  compromis  stipulates  otherwise, 
the  demand  for  a  rehearing  of  the  case  must  be  addressed 
to  the  tribunal  which  pronounced  the  award.  It  may- 
only  be  made  on  the  ground  of  the  discovery  of  some 
new  fact  such  as  may  exercise  a  decisive  influence  on 
the  award,  and  which  at  the  time  when  the  discussion 
was  closed  was  unknown  to  the  tribunal  as  well  as  to 
the  appealing  party.  Proceedings  for  a  rehearing  may 
only  be  opened  after  a  decision  of  the  tribunal,  expressly 
stating  the  existence  of  a  new  fact  of  the  character 
described,  and  declaring  the  demand  admissible  on  this 
ground.  The  treaty  of  arbitration  must  stipulate  the 
period  of  time  within  which  the  demand  for  a  rehearing 
must  be  made  (Article  83). 

§  24.  The  award  ^  is  binding  only  upon  the  parties  Award 
to  the  proceedings.     But  when  there  is  a  question  of  uJTon"^ 
interpreting  a  convention  to  which  States  other  than  Parties 
the  States  at  variance  are  parties,  the  conflicting  States 
have  to  inform  all  the  contracting  Powers  in  good  time. 
Each  has  a  right  to  intervene  in  the  case  before  the 
tribunal,  and,  if  one  or  more  avail  themselves  of  this 
right,   the  interpretation   contained   in   the   award   is 
binding  upon  them  also  (Article  84). 

§  25.  Each   party   pays   its   own   expenses,    and   an  Costs  of 
equal  share  of  those  of  the  tribunal  -  (Article  85).  tion! 

§  25a.  With    a    ^^ew   to    simplifying   arbitration   in  Arbitra- 
disputes  of  minor  importance,  Convention  i.  adopted  summary 
the  following  rules  for  a  summary  procedure  exclusively  p™- 
in  writing  : — 

Each  of  the  conflicting  parties  appoints  an  arbitrator, 
who  need  not  necessarily  be  members  of  the  Permanent 
Court  of  Arbitration.  The  two  arbitrators  thus  appointed 
choose  a  third  as  umpire,  who  need  not  be  a  member  of 
the   Permanent   Court   either.     But  if  they  cannot  agree 

^  The  awards  hitherto  given  are  *  See  details  in  Wehberg,    Kom- 

enumerated  above,  vol.  i.  §  476.  mtntar,  pp.  155-158. 

VOL.    II.  C 


34      AMICABLE   SETTLEMENT   OF   STATE   DIFFERENCES 

upon  an  umpire,  each  of  them  proposes  two  candidates 
taken  from  the  general  hst  of  the  Permanent  Court  of 
Arbitration  (exchisive  of  such  members  as  are  either 
appointed  by  the  conflicting  States  or  are  their  nationals), 
and  it  is  to  be  determined  by  lot  which  of  the  candidates 
shall  be  the  umpire.  This  umpire  presides  over  the  tribunal, 
which  gives  its  decisions  by  a  majority  of  votes  (Article  87). 
In  the  absence  of  agreement,  the  tribunal  settles  the  time 
within  which  the  two  parties  must  submit  their  cases  (Article 
88).  Each  party  is  represented  by  an  agent  who  serves  as 
intermediary  between  it  and  the  tribunal  (Article  89).  The 
proceedings  are  conducted  exclusively  in  writing.  Each 
party,  however,  is  entitled  to  ask  that  witnesses  and  experts 
should  be  called,  and  the  tribunal  has  the  right  to  demand 
oral  explanations  from  the  agents  as  well  as  from  the 
experts  and  witnesses  whose  appearance  in  court  it  may 
consider  useful  (Article  90).  Articles  52  to  85  of  Conven- 
vention  i.  apply  so  far  as  they  are  not  inconsistent  with 
the  rules  laid  down  in  Articles  87  to  90  (Article  86). 


VT 

THE   LEAGUE   OF  NATIONS   AND   STATE   DIFFERENCES 

The  §  256.  Negotiation  between  the  parties,  good  ofifices  or 

NTtfonsas  Hiediatlon  of  third  States,  and  arbitral  awards, — these 
a  Factor  in  wcie  the  Only  amicable  means  available  for  the  settlement 
ferences,  of  State  difierences  before  the  World  War.  There  was 
no  organised  body  to  detect  the  early  growth  of  disputes 
and  by  timely  action  to  avert  armed  conflict.  No  aid  was 
tendered  to  the  parties  at  issue  unless  they  themselves 
sought  it,  or  unless  one  or  more  States  had  sufficient 
interest,  initiative,  and.  prestige  to  offer  their  services. 
But  since  the  war  the  Family  of  Nations  has  acquired 
an  organisation  in  the  League  of  Nations,  and  among 
its  principal  functions  is  the  prevention  of  war.^  Accord- 
ingly,  the  Covenant  charges  the  League  itself  with 

^  See  above,  vol.  i.  §  167». 


THE   LEAGUE   OF  NATIONS   AND   STATE   DIFFERENCES     35 

special  duties,  and  lays  new  obligations  upon  the 
individual  members,  which  are  designed  to  secure  the 
peaceful  settlement  of  differences. 

§  25c.  By  Article  11,  as  has  already  been  seen,^  any  TheDut- 
war  or  threat  of  war,  whether  immediately  affecting  Lea^ue^* 
any  of  the  members  of  the  League  or  not,  is  declared  itself. 
to  be  a  matter  of  concern  to  the  whole  League.    Each 
member  has  the  '  friendly  right '  to  bring  to  the  atten- 
tion of  the  Assembly  or  the  Council  any  circumstance 
affecting   international   relations   which    threatens    to 
disturb  international  peace,  or  the  good  understanding 
between  nations  upon   which   peace   depends.     Upon 
the  request  of  a  member  the  Secretary-General  must  in 
such  an  emergency  forthwith  sununon  a  meeting  of  the 
Council.     The  League  is  to  take  any  action  that  may 
be  deemed  wise  and  effectual  to  safeguard  the  peace 
of  nations.     Upon  the  means  to  be  employed  there  is 
no  other  limitation  than  this ;    accordingly,  they  may 
consist  of  good  offices  or  mediation,  or  of  one  of  the 
methods  of  compulsion  described  in  the  next  chapter. 
Moreover,  mider  Article  10,^  if  there  be  any  threat  or 
danger  of  external  aggression  against  the  territorial 
integrity  or  existing  political  independence  of  a  member, 
the  Council  is  to  advise  other  members  upon  the  means 
for  fulfilling  their  obligation  to  preserve  them.     Here 
again   the   means   are   not   specified ;    they   may   be 
amicable,  compulsive,  or  even  war. 

§  26d.  The  members  of  the  League  have  by  Article  The  Duty 
12  agreed  ^  to  refer  any  dispute  between  them  Hkely  to  bL? ?" 
lead  to  a  rupture  either  to  arbitration  or  to  inquiry  by  voiyed  in 
the  Council,  and  not  to  resort  to  war  until  three  months  inqufry 
after  the  award  or  the  report.     Reference  to  arbitra-  council 
tion  has  already  been  discussed.'*    A  dispute  not  sub- 
mitted to  arbitration  must  be  laid  before  the  Council. 
A  dispute  is  brought  before  the  Council  by  notifica- 

^  See  above,  vol.  i.  §  167i.  '  See  above,  vol.  i.  §  167^. 

*  See  above,  vol.  i.  §  167m.         *  See  above,  §  17a. 


36   AMICABLE  SETTLEMENT  OF  STATE  DIFFERENCES 

tion  to  the  Secretary-General.  Upon  one  of  the  parties 
at  variance  giving  such  notice,  the  Secretary-General 
has  to  make  all  necessary  arrangements  for  full  investi- 
gation and  consideration.  Each  party  must  communi- 
cate to  him  as  promptly  as  possible  statements  of  their 
case,  with  all  relevant  facts  and  papers.^  Either  party, 
by  request  made  within  fourteen  days  after  the  sub- 
mission of  the  dispute,  may  require  it  to  be  referred  to 
the  Assembly  ;  and  the  Council  may  so  refer  it,  even 
if  no  such  request  is  made.^  Otherwise  the  investiga- 
tion and  report  are  to  be  the  work  of  the  Council,  upon 
which  all  parties  to  the  dispute  are  entitled  to  be 
represented  ^  for  the  occasion.  The  Council  is  first 
to  endeavour  to  effect  a  settlement  of  the  dispute ;  if 
successful,  it  is  to  pubhsh  a  statement  giving  such  facts 
and  explanations  regarding  the  dispute,  and  the  terms 
upon  which  it  has  been  settled,  as  it  may  deem  appro- 
priate. If  a  settlement  is  not  reached  in  this  way,  it 
may  be  that  one  party  will  claim  that  the  dispute 
arises  out  of  a  matter  which  by  International  Law  is 
solely  within  the  domestic  jurisdiction  of  that  party.* 
If  the  Council  finds  this  contention  to  be  well  founded, 
it  will  so  report,  and  make  no  recommendation.  But 
if  the  dispute  be  within  the  jurisdiction  of  the  League, 
the  Council  must  make  and  pubhsh  a  report  within  six 
months  after  its  submission.  This  report  is  to  contain 
a  statement  of  the  facts  of  the  dispute,  and  to  make 
such  recommendations  as  are  deemed  just  and  proper. 
If  the  report  be  unanimous,  or  concurred  in  by  all 
members  of  the  Council  other  than  representatives  of 
the  parties  to  the  dispute,  the  members  of  the  League 
agree  that  they  will  not  go  to  war  with  any  party  to 
the  dispute  which  comphes  with  the  recommendations 
of  the  report.     But  if  the  report  is  merely  a  majority 

^  Article  15.     The  Council,  if  it  *  As  to  the  procedure  in  this  case, 

appears  desirable,  may  direct  their       see  below,  §  25e.  '  Article  4. 

immediate  publication.  *  See  aljove,  vol.  i.  §  167t. 


THE  LEAGUE   OF  NATIONS   AND   STATE   DIFFERENCES     37 

report,  the  members  of  the  League  reserve  to  themselves, 
subject  to  their  obhgation  not  to  resort  to  war  until 
three  months  after  the  report,  the  right  to  take  such 
action  as  they  consider  necessary  for  the  maintenance 
of  right  and  justice.  Any  report  by  the  Council  must 
secure  at  least  a  majority  ;  but  each  member  repre- 
sented on  it  may  pubhsh  on  its  own  account  a  state- 
ment of  facts  and  of  its  conclusions  upon  them.^ 

§  25e.  But,  as  has  been  stated,  a  dispute  may  be  inquiry 
transferred  from  the  Council  to  the  Assembly.  In  that  AMembiy. 
case  the  same  procedure  is  to  be  followed, '  the  Assembly  ' 
being  substituted  in  all  references  to  '  the  Council.' 
But  with  regard  to  the  report  there  is  a  difierence.  A 
report  of  the  Assembly,  in  order  to  bind  the  members 
of  the  League  not  to  make  war  against  a  party  carr}ang 
out  its  recommendations,  must  be  concurred  in  by  the 
representatives  of  those  members  of  the  League  repre- 
sented on  the  Council  and  by  the  representatives  of  a 
majority  of  the  other  members,  exclusive  in  each  case 
of  the  representatives  of  the  parties  to  the  dispute. 

§  25/.  The  Covenant  of  the  League  also  contemplates  The  Pro- 
the  settlement  of  differences  between  States  by  recourse  intema- 
to  an  International  Court.  ^    The  need  for  such  a  court,  ]^°^^}  , 

Court  of 

and  the  progress  then  made  towards  its  estabhshment.  Justice. 
have  been  referred  to  in  the  first  volume.^  After  that 
volume  went  to  press,  the  committee  of  jurists  unani- 
mously adopted  a  draft  project  *  for  the  institution  of  the 
court.  The  draft  was  amended  by  the  Council  of  the 
League  and  approved  in  its  amended  form  by  the  Assembly 
at  its  meeting  at  Geneva  on  December  13,  1920.^ 

The  Covenant  does  not  compel  the  submission  of 
any  class  of  disputes  to  this  court ;  but  only  provides 
that  it  should  hear  and  determine  any  international 

^  Article  15.  September  1920. 

*  Article  14.                *  §  4766.  '  League  of  Nations  Official  Jour- 

*  League  of  Nations  Official  Jour-  nal,    Special    Supplement,    January 
nal,    Special    Supplement    (No.    2),  1921,  p.  23. 


38      AJNIICABLE   SETTLEMENT  OF  STATE  DIFFERENCES 

dispute  which  the  parties  voluntarily  bring  before  it. 
The  proposal  made  by  the  committee  of  jurists  that 
the  court  should  nevertheless  have  compulsory  juris- 
diction in  certain  classes  of  State  difierences  was  not 
accepted  by  the  League.  Many  of  the  treaties  which 
constitute  the  resettlement  after  the  World  War  have, 
however,  as  has  been  previously  stated,  expressly  stipu- 
lated that  certain  differences  which  may  arise  under 
them  should  be  brought  before  this  court  for  decision. 
S  whiVh  §  ^^^'  I^isputes  may  arise  between  a  State  which  is, 
non-  and  a  State  which  is  not,  a  member  of  the  League,  or 
areTn-^"  betwccu  two  States  neither  of  which  is  a  member.  In 
voived.  ^jjg^^  event,  the  State  or  States  which  are  not  members 
of  the  League  are  to  be  invited  to  accept  the  obligations 
of  membership  for  the  purposes  of  the  dispute  upon 
such  conditions  as  the  Council  may  deem  just,  and  the 
Council  is  immediately  to  institute  an  inquiry  into  the 
circumstances  of  the  dispute,  and  recommend  such 
action  as  may  seem  best  and  most  effectual  under  the 
circumstances. 

If  for  the  purpose  of  a  dispute  between  a  member 
and  a  non-member  the  non-member  refuses  to  accept 
the  obHgations  of  membership,  and  resorts  to  war 
against  the  member,  it  is  to  be  subjected  to  the  same 
measures  as  a  member-State  which  breaks  its  cove- 
nants.^ If  neither  party  to  a  dispute  is  a  member  of 
the  League,  and  both  refuse  to  accept  the  obligations 
of  membership  for  the  purposes  of  the  dispute,  the 
Council  may — not  must— take  such  measures  and  make 
such  recommendations  as  will  prevent  hostilities  and 
result  in  the  settlement  of  the  dispute.  No  special 
provision  seems  to  have  been  made  for  the  case  in  which 
one  party  consents  and  the  other  refuses  to  accept  the 
obHgations  of  membership.^ 

^  See  below,  §  26.  ing   with    international    differences 

*  The  defects  of  the  provisions  of  have  been  discussed  above,  vol.  i. 
the  Covenant  of  the  League  for  deal-       §  167«. 


CHAPTER  II 

COMPULSIVE  SETTLEMENT  OF  STATE  DIFFERENCES 


ON  COMPULSIVE   MEANS   OF  SETTLEMENT   OF   STATE 
DIFFERENCES   IN   GENERAL 

Hershey,  Nos.  321-328— Lawrence,  §  136— Westlake,  ii.  p.  6— Phillimore, 
iii.  §  7— Pradier-Fod6r4,  vi.  No.  2632— Despagnet,  No.  483— M^rignhac, 
iii".  p.  44— Fiore,  ii.  No.  1225,  and  Code,  Nos.  1386-1390— Taylor,  §  431 
— Nys,  ii.  pp.  581-593 — Schoenborn,  Die  Besetzung  von  Vera  Cruz  (1914), 
pp.  7-35. 

§  26.  Under  the  Covenant  of  the  League  of  Nations,  Concep- 
as  was  explained  in  the  last  chapter,  member-States  KindTof 
have  imdertaken  not  to  resort  to  war  without  having  9°™?"^- 

"  sive 

first  submitted  a  dispute  either  to  arbitration  or  to  Means  of 
inquiry,  and  in  no  case  to  begin  hostihties  against  a  ment! 
State  which  comphes  with  an  arbitral  award  or  with 
the  recommendations  of  a  report  of  the  Council  or  the 
Assembly  which  has  secured  the  requisite  majority. 
But  a  member  may  break  his  covenants  ;  in  that  case, 
measures  of  compulsion  are  to  be  taken  against  it  by 
the  other  members  of  the  League.  These  measures  are 
laid  down  in  Article  16,  and  have  already  been  fully 
stated.^  Or  again,  it  may  be  necessary  for  the  League 
itself  to  apply  compulsion  to  a  State  or  States  for  the 
purpose  of  safeguarding  the  peace  of  the  world.     More- 

^  See  above,  vol.  i.  §  167/:.  They  between  its  subjects  and  theirs,  (3) 
are  briefly,  (1)  the  severance  of  all  the  prevention  of  all  intercourse  be- 
trade  or  financial  relations  between  tween  its  subjects  and  the  subjects  of 
the  guilty  State  and  other  members,  States  which  are  not  members  of  the 
(2)  the  prohibition  of  all  intercourse        League,  and  if  need  be,  (4)  armed  force. 

39 


40      COMPULSIVE   SETTLEMENT  OF  STATE   DIFFERENCES 

over,  there  are  still  many  cases  in  which  individual 
States  are  permitted  by  the  Covenant  to  take 
measures  of  compulsion  against  each  other ;  and 
if  its  machinery  should  disappoint  the  hopes  of  its 
founders,  the  occasion  for  such  measures  will  arise 
more  often.  It  is  the  purpose  of  this  chapter  to  discuss 
them.  All  the  means  of  constraint  here  mentioned, 
except  the  so-called  '  economic  boycott/  were  in  use 
before  the  organisation  of  the  League  of  Nations,  and 
in  a  book  which  was  written  before  the  World  War  are 
naturally  discussed  without  reference  to  the  League. 
But  it  will  be  apparent  that  some  of  them  are  as  appro- 
priate for  use  by  the  League  itself  as  for  use  by  the 
individual  States. 

Compulsive  means  of  settlement  of  differences  are 
measures  containing  a  certain  amount  of  compulsion 
taken  by  a  State  for  the  purpose  of  making  another 
State  consent  to  such  settlement  of  a  difference  as 
is  required  by  the  former.  There  are  four  different 
kinds  of  such  means  in  use — namely,  retorsion,  reprisals 
(including  embargo),  pacific  blockade,  and  intervention. 
But  it  must  be  mentioned  that,  whereas  every  amicable 
means  of  settling  differences  might  find  apphcation  in 
every  kind  of  difference,  not  every  compulsive  means 
is  appHcable  in  every  difference.  For  the  application 
of  retorsion  is  confined  to  political,  and  that  of  reprisals 
to  legal,  differences. 
Corapui-  §  27.  War  is  very  often  enumerated  among  the  com- 
I7eans  in  pulsivc  mcaus  of  scttUug  international  differences.  This 
contradis-  jg  in  a  scusc  corrcct,  for  a  State  might  make  war  for  no 

tinction  *-' 

to  War.  other  purpose  than  that  of  compellmg  another  State 
to  settle  a  difference  in  the  way  required  before  war 
was  declared.  Nevertheless,  the  characteristics  of  com- 
pulsive means  of  settling  international  differences  make 
it  necessary  to  draw  a  sharp  line  between  them  and 
war.     It  is,  in  the  first  place,  characteristic  of  com- 


COMPULSIVE   SETTLEMENT  IN  GENERAL  41 

pulsive  means  that,  although  they  frequently  consist 
of  harmful  measures,  they  are  not  considered  as  acts 
of  war,  either  by  the  conflicting  States  or  by  other 
States,  and  consequently  all  relations  of  peace,  such  as 
diplomatic  and  commercial  intercourse,  the  execution 
of  treaties,  and  the  hke,  remain  undisturbed.  Com- 
pulsive means  are  in  theory  and  practice  considered 
peaceable,  although  not  amicable,  means  of  setthng 
international  differences.  It  is,  further,  characteristic 
of  compulsive  means  that  they  are  even  at  their  worst 
confined  to  the  apphcation  of  certain  harmful  measures 
only,  whereas  beUigerents  in  war  may  apply  any  amount 
and  any  kind  of  force,  with  the  exception  only  of  those 
methods  forbidden  by  International  Law.  And,  thirdly, 
it  is  characteristic  of  compulsive  means  that  a  State 
which  has  succeeded  in  compelling  another  to  declare 
that  it  is  ready  to  settle  the  difference  in  the  manner 
desired  must  cease  to  apply  them ;  whereas,  war  once 
broken  out,  a  belligerent  is  not  obliged  to  lay  down  arms 
if  and  when  the  other  belHgerent  is  ready  to  comply 
with  the  request  made  before  the  war.  As  war  is  the 
ultima  ratio  between  States,  the  victorious  belhgerent 
is  not  legally  prevented  from  imposing  upon  the  defeated 
foe  any  conditions  he  Hkes. 

§  28,  Since  these  are  the  characteristics  of  compul-  Compul- 
sive means  for  the  settlement  of  international  differ-  ^gans  in 
ences,  it  is  necessary  to  distinguish  between  such  means  contradis- 

-,  ,   .  mi       1  •        1  1-1  i"       tinctionto 

and  an  idtmiatum.     ihe  latter  is  the  techmcal  term  tor  an  uiti- 
a  ™tten  communication  by  one  State  to  another  which  ^d^"i^. 
ends  amicable  negotiations  respecting  a  difierence,  and  monstra- 
formulates,   for  the   last  time   and   categorically,    the 
demands  to  be  fulfilled  if  other  measures  are  to  be 
averted.     An  ultimatum  is,  theoretically  at  least,  not 
compulsion,  although  it  may  have  the  same  effect,  and 
although   compulsive   means,    or   even   war,    may    be 
threatened   in  the  event  of  a  refusal  to  comply  with 


42      COMPULSIVE   SETTLEMENT  OF  STATE  DIFFERENCES 

the  demands  made.^  Similarly,  withdrawal  of  diplo- 
matic agents,  military  and  naval  demonstrations,  and 
the  like,  which  some  pubHcists  ^  enumerate  among  the 
compulsive  means  of  settlement  of  international  differ- 
ences, although  they  may  indirectly  achieve  the  settle- 
ment of  differences,  are  not  in  themselves  measures  of 
compulsion. 

II 

RETORSION 

Vattel,  ii.  §341— Hall,  §  120— Westlake,  ii.  p.  6— Phillimore,  iii,  §  7— Twiss 
ii.  §  10— Taylor,  §  435— Wharton,  iii.  §  318— Moore,  vii.  §  1090— 
Wheaton,  §  290— Bluntschli,  §  505— Heffter,  §  110— Bulmerincq  in 
Holtzendorff,  iv.  pp.  59-71— Ullmann,  §  159— Bonfils,  Nos.  972-974— 
Despagnet,  Nos.  484-486 — M^rignhac,  iii".  p.  46— Pradier-Fod6r6,  vi. 
Nos.  2634-2636— Rivier,  ii.  §  60— Nys,  ii.  p.  582— Calvo,  iii.  §  1807— 
Fiore,  ii.  Nos.  1226-1227,  and  Code,  Nos.  1391-1395— Martens,  ii.  §  105 
— Rapisardi-Mirabelli  in  R.I.,  2nd  Ser.  xvi.  (1914),  pp.  223-244. 

Concep-  §  29.  Retorsion  is  the  technical  term  for  retahation 
Character  for  discourtcous,  or  uukiud,  or  unfair  and  inequitable, 
sL?**°'^  acts  by  acts  of  the  same,  or  a  similar,  kind.  Retorsion  j 
has  nothing  to  do  with  international  delinquencies,  as 
it  is  not  a  means  of  compulsion  in  the  case  of  legal 
differences,  but  only  in  the  case  of  certain  pohtical 
differences.  The  act  which  calls  for  retahation  is  not 
an  illegal  act ;  on  the  contrary,  it  is  an  act  that  is  within 
the  competence  of  the  doer.^  But  a  State  can  commit 
many  legislative,  administrative,  or  judicial  acts  which, 
although  they  are  not  internationally  illegal,  involve 
discourtesy  or  uniriendliness  to  another  State,  or  are 

^  See     Praflier-Fod6r6,     vi.     No.  des  Fo^ierrec^i*  (1900),  pp.  53-60— it 

2649,  and  below,  §  95.  is  correctly  maintained  that  retorsion, 

,  r,       mi         CO    >o.     ^oo     . . ,  ih  contradistinctioH  to  reprisals,  is 

J  See   Taylor,    §§   ^31     433    441  ;  ^^^  ^j  j      j    ^ut   only   of   political 

Moore,    vai     §§    1089,   1091      1099;  i^^portance.    Nevertheless,  a  system 

Pradier-Fod6r6,  vi.  No.  2633.  ^j  ^j^^  l,^^.  ^j  Nations  must  not  omit 

'  For  this  reason — see  Heilborn,  retorsion  altogether,  because  it  is  in 

System,   p.   352,   and   Wagner,   Zur  practice    an    important    means    of 

Lehre  vcmdcn  Streiterledigungsmittdn  settling  political  differences. 


i 


RETORSION 


43 


unfair  and  inequitable.  If  the  State  against  which 
such  acts  are  directed  considers  itself  wronged  thereby, 
a  pohtical  difference  is  created  which  might  be  settled 
by  retorsion. 

§  30.  The  question  when  retorsion  is,  and  when  it  Retor- 
is  not,  justified  is  not  one  of  law,  and  is  difficult  to  ^,J";^ 
answer.  The  difficulty  arises  from  the  fact  that  the  i^^stified. 
conceptions  of  discourtesy,  unfriendhness,  and  unfair- 
ness cannot  be  defined  very  precisely.  It  depends, 
therefore,  largely  upon  the  circumstances  and  condi- 
tions of  each  case  whether  a  State  will,  or  will  not, 
consider  itself  justified  in  making  use  of  retorsion.  In 
practice.  States  have  frequently  employed  retorsion 
in  cases  of  unfair  treatment  of  their  citizens  abroad 
through  rigorous  passport  regulations,  the  exclusion  of 
foreigners  from  certain  professions,  the  levy  of  exorbi- 
tant protectionist  or  fiscal  duties  ;  or  in  cases  when  the 
courts  of  another  State  have  refused  the  usual  assistance 
to  its  courts,  or  another  State  has  refused  to  admit 
foreign  ships  to  its  harbours,  etc. 

§  31.  The  essence  of  retorsion  consists  in  retaliation  Retor- 
for  a  noxious  act  by  a  noxious  act.  But  a  State,  in  exTrcised. 
making  use  of  retorsion,  is  by  no  means  confined  to 
acts  of  the  same  kind  as  those  complained  of,  acts  of  a 
similar  kind  being  equally  admissible,  provided  they 
are  not  internationally  illegal.  And,  further,  as  retor- 
sion is  made  use  of  only  to  compel  a  State  to  alter  its 
discourteous,  unfriendly,  or  unfair  behaviour,  all  acts 
of  retorsion  ought  at  once  to  cease  when  it  does  so. 

§  32.  The  value  of  retorsion  as  a  means  of  settling  vaiue  of 
certain  international  differences  consists  in  its  com-  ^^^j^^' 
pulsory  force,  which  has  great  power  in  regulating  the 
intercourse  of  States.  It  is  a  commonplace  of  human 
nature,  and  by  experience  constantly  confirmed,  that 
evil-doers  are  checked  by  retahation,  and  that  those 
who  are  inclined  to  commit  a  wrong  against  others  are 


44      COMPULSIVE   SETTLEMENT  OF  STATE  DIFFERENCES 

often  prevented  by  the  fear  of  it.  Through  the  high 
tide  of  chauvinism,  protectionism,  and  unfriendly  feel- 
ings against  foreign  nations,  States  are  often  tempted 
to  legislative,  administrative,  and  judicial  acts  against 
other  States  which,  although  not  internationally  illegal, 
nevertheless  endanger  friendly  relations  and  intercourse 
within  the  Family  of  Nations.  The  certainty  of  retalia- 
tion may  be  the  only  force  which  can  make  States 
resist  the  temptation. 


Ill 

REPRISALS 

GrotiuB,  iii.  c.  2 — Vattel,  ii.  §§  342-354 — Bynkershoek,  Quaestionea  Juris 
puilici,  i.  c.  24— Hall,  §  120~Lawrence,  §§  136-137— Westlake,  ii. 
pp.  6-11,  and  Papers,  pp.  590-606— Twiss,  ii.  §§  11-22— Moore,  vii. 
§§  1095,  1096,  1098— Taylor,  §§  436-437— Wharton,  iii.  §§  318,  320— 
Wheaton,  §§  291-293— Bluntschli,  §§  500-504— Heffter,  §§  111-112— Bul- 
merincq  in  Holtztndorff,  iv.  pp.  72-116 — UUmann,  §  160 — Bonfils,  Nos. 
975-985— Despagnet,  Nos.  487-495— Pradier-Fod^r6,  vi.  Nos.  2637-2647 
— M^rignhac,  iii".  pp.  48-60 — Rivier,  ii.  §60 — Nys,  ii.  pp.  582-589 — Calvo, 
iii.  §§  1808-1831— Fiore,  ii.  Nos.  1228-1230,  and  Code,  Nos.  1396-1404— 
Martens,  ii.  §  105 — Lafargue,  Les  Reprdsaillea  en  Temps  de  Paix  (1899) 
— Ducrocq,  ReprdsaUles  en  Temps  de  Paix  (1901),  pp.  5-57,  175-232. 

Concep-        §  33.  Reprisals    are    such    injurious    and    otherwise 

Reprisals  internationally  illegal  acts  of  one  State  against  another 

disUnc^^  as  are  exceptionally  permitted  for  the  purpose  of  com- 

tiontoRe-  pelhug  the  latter  to  consent  to  a  satisfactory  settlement 

of  a  difference  created  by  its  own  international  dehn- 

quency.     Whereas  retorsion  consists  in  retahation  for 

discourteous,  unfriendly,  unfair,  and  inequitable  acts  by 

acts  of  the  same  or  a  similar  kind,  and  has  nothing  to 

do  with  international  delinquencies,  reprisals  are  acts, 

otherwise  illegal,  performed  by  a  State  for  the  purpose 

of  obtaining  justice  for  an  international  delinquency  by 

taking  the  law  into  its  own  hands.     It  is,  of  course, 

possible  for  a  State  to  retaHate  for  an  illegal  act  com- 


REPRISALS  45 

mitted  against  itself  by  an  act  of  a  similar  kind.  Such 
retaliation  would  be  retorsion  in  the  ordinary  sense  of 
the  term  ;  but  not  in  the  technical  meaning  of  the  term, 
as  used  by  those  writers  on  International  Law  who 
correctly  distinguish  between  retorsion  and  reprisals. 

§  34.  Reprisals   are   admissible,   not  only,   as   some  Reprisals 
writers  ^  maintain,  in  case  of  denial  or  delay  of  justice,  sibTe'Tor 
or  other  ill-treatment  of  foreign  citizens  prohibited  by  *^^  f"^®""- 
International  Law,  but  in  all  other  cases  of  an  inter-  Deiin- 
national  dehnquency  for  which  the  injured  State  cannot  "1"®"°^^^- 
get  reparation  through  negotiation,^  or  other  amicable 
means,  be  it  non-compliance  with  treaty  obligations, 
violation  of  the  dignity  of  a  foreign  State,  violation  of 
foreign    territorial    supremacy,    or    any    other    inter- 
nationally illegal  act. 

Thus,  to  give  an  example.  Great  Britain,  in  the  case 
of  the  Sicihan  Sulphur  Monopoly,  performed  acts  of 
reprisal  against  the  Two  SiciHes  in  1840  for  a  violation 
of  a  treaty.  By  the  treaty  of  commerce  of  1816  between 
the  Tw^o  SiciHes  and  Great  Britain  certain  commercial 
advantages  had  been  secured  to  Great  Britain ;  and 
when,  in  1838,  the  Neapohtan  Government  granted  a 
sulphur  monopoly  to  a  company  of  French  and  other 
foreign  merchants.  Great  Britain  protested  against  this 
as  a  violation  of  her  treaty  rights,  and  demanded  the 
revocation  of  the  monopoly.  The  Neapolitan  Govern- 
ment had  declined  to  comply,  and  Great  Britain  in  1840 
laid  an  embargo  on  Sicihan  ships  in  the  harbour  of 
Malta,  and  ordered  her  fleet  in  the  Mediterranean  to 
seize  Sicilian  ships,  by  way  of  reprisal.  A  number  of 
vessels  were  captured,  but  were  restored  after  the 
Sicilies  had,  through  the  mediation  ^  of  France,  agi'eed 
to  withdraw  the  grant  of  the  sulphur  monopoly. 

*  See,  for  instance,  Twiss,  ii.  §  19.        §  41. 

*  As  regards  reprisals  for  the  non-  ^  See  Satow,  Diplomatic  Practice^ 
payment  of  contract  debts,  see  below,       ii.  §636. 


46      COMPULSIVE   SETTLEMENT  OF   STATE   DIFFERENCES 

Again,  when  in  1908  de  Castro,  the  President  of 
Venezuela,  dismissed  M.  de  Reuss,  the  Dutch  minister 
resident  at  Caracas,  Holland  considered  this  step  to 
be  a  violation  of  her  dignity,  and  sent  cruisers  into 
Venezuelan  waters  to   take  reprisals.     These  cruisers 
captured  the  Venezuelan  coast-guard  ship  Alexis  out- 
side Puerto   Cabello,   and  another  Venezuelan  pubhc 
vessel ;  but  both  were  restored  in  1909,  when  de  Castro 
was  deposed,  and  the  new  President  negotiated  a  settle- 
ment with  Holland. 
Reprisals      §  35.  Reprisals  are  admissible  in  the  case  of  inter- 
dbTJfor    national  delinquencies  only  and  exclusively.     As  inter- 
inter-       nationally  injurious  acts  on  the  part  of  administrative 
Deiin^^     and  j  udicial  officials,  armed  forces,  and  private  individuals 
quencies    ^^^  ^^^^  ipso  facto  international  dehnquencies,  no  reprisals 
for  them  are  admissible  if  their  State  discharges  the 
obhgations  of  its  vicarious  responsibihty.^    However, 
should  it  refuse  to  do  so,  its  vicarious  responsibihty 
would  turn  into  original  responsibihty,  and  thereby  an 
international  dehnquency  would  be  created,  for  which 
reprisals  are  indeed  admissible. 

The  reprisals  ordered  by  Great  Britain  in  the  case  of 
Don  Pacifico  are  an  illustrative  example  of  unjustified 
reprisals,  because  no  international  dehnquency  had 
been  committed.  In  1847  a  riotous  mob,  aided  by 
Greek  soldiers  and  gendarmes,  broke  into,  and  plundered, 
the  house  of  Don  Pacifico,  a  native  of  Gibraltar,  and  an 
Enghsh  subject  living  at  Athens.  Great  Britain  claimed 
damages  from  Greece,  although  Don  Pacifico  had  not 
sought  redress  in  the  Greek  courts.  Greece  refused  to 
comply  with  the  British  claim,  maintaining  correctly 
that  Don  Pacifico  ought  to  institute  an  action  for 
damages  against  the  rioters  before  the  Greek  courts. 
Great  Britain  continued  to  press  her  claim,  and  finally 
in  1850  blockaded  the  Greek  coast  and  ordered,  by 

1  See  above,  vol.  i.  §§  149,  150. 


REPRISALS  47 

f 

way  of  reprisal,  the  capture  of  Greek  vessels.  The 
conflict  was  eventually  settled  by  Greece  paying  £150 
to  Don  Pacifico.  It  is  generally  recognised  that  England 
had  no  right  to  act  as  she  did  in  this  case.  She  could 
have  claimed  damages  directly  from  the  Greek  Govern- 
ment only  after  the  Greek  courts  had  denied  satisfac- 
tion to  Don  Pacifico.^ 

§  36.  Acts  of  reprisal  may  nowadays  be  performed  Reprisals, 
only  by  State  organs  such  as  armed  forces,  or  men-of-  pei-^  '^^ 
war,  or  administrative  officials,  in  comphance  with  a  ^"^^rmed. 
special  order  of  their  State.  But  in  former  times 
private  individuals  used  to  perform  them.  Such  private 
acts  of  reprisal  seem  to  have  been  in  vogue  in  antiquity, 
for  there  existed  a  law  in  Athens,  according  to  which  the 
relatives  of  an  Athenian,  murdered  in  a  foreign  State 
which  refused  punishment  or  extradition  of  the  murderer, 
had  the  right  to  seize,  and  bring  before  the  Athenian 
courts,  three  citizens  of  that  State  (so-called  avhpoXrj-fia), 
During  the  Middle  Ages,  and  even  in  modern  times  to 
the  end  of  the  eighteenth  century,  States  used  to  grant 
so-called  '  letters  of  marque  '  to  subjects  who  had  been 
injured  abroad,  either  by  a  foreign  State  itself  or  by 
its  citizens,  and  could  not  get  redress.  They  authorised 
the  bearer  to  conunit  acts  of  self-help  against  the  State 
concerned,  its  citizens  and  their  property,  for  the 
purpose  of  obtaining  satisfaction  for  the  wrong  sustained. 
In  later  times,  however,  States  themselves  also  per- 
formed acts  of  reprisal.  In  consequence,  their  perform- 
ance by  private  individuals  fell  more  and  more  into 
disuse,  and  finally  disappeared  totally  with  the  end  of 
the  eighteenth  century.  The  distinction  between  general 
and  special  reprisals,  which  used  formerly  to  be  drawn, 
is  based  on  the  fact  that  in  former  times  a  State  could 
either  authorise  a  single  private  individual  to  perform 

*  See  above,   vol.  i.  §  167.     The       Martens,  Causes  cdUhres,  v.  pp.  395- 
case  is  reported  with  all  its  details  in        531 . 


48      COMPULSIVE   SETTLEMENT   OF   STATE   DIFFERENCES 

an  act  of  reprisal  {special  reprisals),  or  command  its 
armed  forces  to  perform  all  kinds  of  such  acts  {general 
reprisals).  The  term  'general  reprisals'  is  by  Great 
Britain  nowadays  used  for  the  authorisation  of  the 
British  fleet  to  seize  in  time  of  war  all  enemy  ships  and 
goods. 1 
Objects  of  §  37.  An  act  of  reprisal  may  be  performed  against 
epnsa  s.  ^^j^^^j^jj^g  ^^^^  everything  that  belongs  to,  or  is  due  to, 
the  delinquent  State  or  its  citizens.  Ships  saihng  under 
its  flag  may  be  seized,  treaties  concluded  with  it  may 
be  suspended,  a  part  of  its  territory  may  be  militarily 
occupied,  goods  belonging  to  it,  or  to  its  citizens,  may 
be  seized,  and  the  like.  Thus  in  1895  Great  Britain 
ordered  a  fleet  to  land  forces  at  Corinto,  and  to  occupy 
the  custom-house  and  other  Government  buildings,  as 
an  act  of  reprisal  against  Nicaragua  ;  again,  in  1901 
France  ordered  a  fleet  to  seize  the  island  of  Mitylene, 
as  an  act  of  reprisal  against  Turkey ;  and  in  1908 
Holland  ordered  a  squadron  to  seize  two  pubHc  Vene- 
zuelan vessels  as  an  act  of  reprisal  against  Venezuela.^ 
The  persons  of  officials,  and  even  of  private  citizens,  of 
the  delinquent  State  are  possible  objects  of  reprisals. 
Thus,  when  in  1740  the  Empress  Anne  of  Eussia  arrested 
without  just  cause  Baron  de  Stackelberg,  a  natural- 
born  Russian  subject,  who  had,  however,  become 
naturalised  in  Prussia  by  entering  Prussian  service, 
Frederick  ii.  of  Prussia  seized  two  Russian  subjects 
by  way  of  reprisal,  and  detained  them  until  Stackelberg 

^  Phillimore    (iii.    §  10)  cites  the  Her  Pris'y  Council,  to  order,  and  it 

following  Order  in  Council  of  March  is     hereby    ordered,     that     general 

29,     1854:     'Her    Majesty    having  reprisals  be  granted  against  the  ships, 

determined  to  afford  active  assist-  vessels,  and  goods  of  the  Emperor  of 

ance  to  her  ally.  His  Highness  the  All  the  Russias,  and  of  his  subjects. 

Sultan  of  the  Ottoman  Empire,  for  or  others  inhabiting  within  any  of  his 

the    protection    of     his    dominions  countries,  territories,  or  dominions, 

against  the  encroachments  and  un-  so    that    Her   Majesty's   fleets   may 

provoked  aggression  of  His  Imperial  la-wfuUy  seize  all  ships,  vessels,  and 

Majesty    the    Emperor   of    All   the  goods,'  etc. 
Russias,   Her   Majesty   is   therefore 
pleased,  by  and  with  the  advice  of  *  See  above,  §  34. 


REPRISALS  49 

was  liberated.  But  it  must  be  emphasised  that  the 
only  act  of  reprisal  admissible  against  foreign  officials 
or  citizens  is  arrest ;  they  must  not  be  treated  like 
criminals,  but  like  hostages,  and  mider  no  circumstance 
may  they  be  executed,  or  subjected  to  punishment. 

The  rule  that  anything  and  everything  belonging  to 
the  delinquent  State  may  be  made  the  object  of  reprisals 
has,  however,  exceptions ;  for  instance,  individuals 
enjoying  the  privilege  of  exterritoriahty  while  abroad, 
such  as  heads  of  States  and  diplomatic  envoys,  may 
not  ^  be  made  the  object  of  reprisals,  although  this  has 
occasionally  been  done  in  practice.^  In  regard  to 
another  exception — namely,  pubhc  debts — unanimity 
does  not  exist,  either  in  theory  or  in  practice.  When 
Frederick  ii.  of  Prussia  in  1752,  by  way  of  negative 
reprisals  for  an  alleged  injustice  of  British  Prize  Courts 
against  Prussian  subjects,  sequestrated  the  payments  of 
the  Silesian  loan  due  to  EngHsh  creditors.  Great  Britain, 
in  addition  to  denying  that  there  was  a  just  cause  for 
reprisals  at  all,  maintained  that  pubhc  debts  may  not 
be  made  the  object  of  reprisals.  Enghsh  jurists  and 
others,  as,  for  instance,  Vattel,  agree,  but  German 
writers  dissent.^ 

§  38.  Reprisals  can  be  positive  or  negative.     Positive  Positive 
reprisals  are  such  acts  as  would  under  ordinary  circum-  ^^  ^^.^^ 
stances  involve  an  international  dehnquency.     Nega-  Reprisals. 
tive  reprisals  consist  in  a  refusal  to  perform  such  acts 
as  are  under  ordinary  circumstances  obhgatory ;    such 
as  the  fulfilment  of  a  treaty  obhgation  or  the  payment 
of  a  debt. 

^  Grotius,  ii.  c.  18,  §  7.  Causet  cdlebres,  ii.   pp.   97-168,  and 

*  See  the  case  reported  in  Martens,  Trendelenburg,  Fnedrichs  des  Gro.i- 

Caiues  ce'lebreg,  i.  p.  35.  sera  Verdienst  um  das  Volkerrecht  im 

'  See  Vattel,  ii.  §  344 ;  Phillimore,  Seekrieg    (Monthly    Report   of    the 

iii.    §    22,    in    contradistinction    to  Prussian     Academy      of     Sciences, 

Heffter,   §  111,  n.  5.     The   case   is  January    1866).      The  dispute   was 

treated  in  all  its  details  in  Satow,  settled  in  1756 — see  below,  §  437 — 

The  Siletian  Loan  and  Frederick  the  through    Great    Britain    paying    an 

Cheat    (1915).      See   also    Martens,  indemnity  of  £20,000. 

VOL.   II.  D 


50      COMPULSWE   SETTLEMENT  OF  STATE   DIFFERENCES 

Reprisals  §  39.  Reprisals,  be  they  positive  or  negative,  must 
propo?^  be  in  proportion  to  the  wrong  done,  and  to  the  amount 
tionate.  q{  compulsiou  uecessary  to  get  reparation.  For  in- 
stance, a  Stat«  would  not  be  justified  in  arresting,  by 
way  of  reprisal,  thousands  of  foreign  subjects  Hving  on 
its  territory  because  their  home  State  had  denied  justice 
to  one  of  its  subjects  living  abroad.  But  it  would  be 
justified  in  ordering  its  own.  courts  to  deny  justice  to 
all  subjects  of  that  foreign  State,  or  in  ordering  its  fleet 
to  seize  several  vessels  saihng  under  the  flag  of  that 
State,  or  in  suspending  a  commercial  treaty  with  it. 
Embargo.  §  40.  A  kind  of  reprisal,  which  is  called  embargo, 
must  be  specially  mentioned.  This  term  of  Spanish 
origin  means  detention,  but  in  International  Law  it 
has  the  technical  meaning  of  detention  of  ships  in  port. 
Now,  as  by  way  of  reprisal  all  acts,  otherwise  illegal, 
may  be  performed,  there  is  no  doubt  that  ships  of  the 
delinquent  State  may  be  prevented  from  leaving  the 
ports  of  the  injured  State  for  the  purpose  of  com- 
pelhng  the  dehnquent  State  to  make  reparation  for  the 
wrong  done.^ 

But  the  important  point  is  to  distinguish  embargo  by 
way  of  reprisal  from  detention  of  ships  for  other  reasons. 
According  to  a  rule  of  International  Law,  beheved  to 
be  obsolete  until  the  World  War,^  conflicting  States 
could,  when  war  was  breaking  out  or  impending,  lay 
an  embargo  on,  and  appropriate  each  other's  merchant- 
men. Another  kind  of  embargo  is  the  so-called  arret  de 
prince  ^ — that  is,  a  detention  of  foreign  ships  to  prevent 
the  spread  of  news  of  political  importance.  And  there 
is,   thirdly,   einhargo  arising  out  of  the  so-called  jus 

^  Thus  in  1840 — see  above,  §  34 —  '  See  Steck,  Versuch  iiber  Handels- 

Great   Britain   laid  an  embargo  on  und   tSchiffahrts-Vertrcige   (1782),    p. 

Sicilian  ships.  355  ;  Caumont,  Dictionnaire  universel 

*  See,    however,    below,    §    102a,  rfeZ)roi<mari<rme  (1867),  pp.  247-265; 

where  the  attitude  of  belligerents  at  Calvo,  iii.  §  1277  ;    Pradier-Fod^rd, 

the  outbreak  of  the  World  War  is  v.    p.    719 ;     Holtzendorff,    iv.    pp. 

discussed.  98-104. 


REPRISALS  51 

aiigaricB — that  is,  the  right  of  a  belhgerent  State  to 
seize,  and  make  use  of,  neutral  property  in  case  of 
necessity,  under  the  obligation  to  compensate  the 
neutral  owner.  ^ 

These  kinds  of  international  embargo  must  not  be 
confounded  with  the  so-called  civil  embargo  of  Enghsh 
Municipal  Law  ^ — namely,  an  order  of  the  sovereign  to 
English  ships  not  to  leave  Enghsh  ports. 

§  41.  Like  all  other  compulsive  means  of  settling  Reprisals 
international  differences,  reprisals  are  admissible  only  cedS^b^ 
after  negotiations  have  been  conducted  in  vain  for  the  Negotia- 
purpose  of  obtaining  reparation  from  the  deUnquent  to  te 
State.     In  former  times,  when  States  used  to  authorise  ■■^^^pp^^ 

'  when  xve- 

private  individuals  to  perform  special  reprisals,  treaties  paration 
of  commerce  and  peace  frequently  stipulated  for  a 
certain  period  of  time,  for  instance  three  or  four  months, 
to  elapse  after  an  application  for  redress  before  the  grant 
of  letters  of  marque  by  the  injured  State. ^  Although 
with  the  disappearance  of  special  reprisals  this  is  now 
antiquated,  a  reasonable  time  for  the  performance  of 
reparation  must  even  nowadays  be  given.  On  the 
other  hand,  reprisals  must  at  once  cease  when  the 
delinquent  State  makes  the  necessary  reparation. 
Individuals  arrested  must  be  set  free,  goods  and  ships 
seized  must  be  handed  back,  occupied  territory  must 
be  evacuated,  suspended  treaties  must  again  be  put 
into  force,  and  the  like. 

It  must  be  specially  mentioned  that  in  the  case  of 
recovery  of  contract  debts  claimed  from  the  Govern- 
ment of  one  country  by  the  Government  of  another 
country  as  being  due  to  its  nationals,  reprisals  by  means 
of  armed  forces  can,  according  to  Article  1  of  Conven- 
tion n.,  only  be  resorted  to  in  case  the  debtor  State 
refuses  arbitration. 

»  See  below,  §§  364-365.  *  See  Phillimoie,  iii.  §  14. 

«  See  Phillimore,  iii.  §  26. 


52      COMPULSIVE   SETTLEMENT  OF  STATE  DIFFERENCES 

Reprisals  §  42.  Repiisals  in  time  of  peace  must  not  be  con- 
Pelc^in  fomided  with  reprisals  between  belligerents.  Whereas 
oontradis-  f]^Q  former  are  resorted  to  for  the  purpose  of  settUng 

tinction  .  ,  .  r      r  o 

to  Repri-  a  couflict  without  going  to  war,  the  latter  ^  are  retalia- 
during  tious  to  force  an  enemy  guilty  of  a  certain  act  of  illegiti- 
^^'^'■-  mate  warfare  to  comply  with  the  laws  of  war. 
Value  of  §  43.  The  value  of  reprisals  as  a  means  of  setthng 
epnsa  s.  ij^^3pj;^g^^JQj;^g^l  differences  is  analogous  to  the  value  of 
retorsion.  States  have  recourse  to  reprisals  for  such 
international  delinquencies  as  they  think  not  important 
enough  for  a  declaration  of  war,  but  too  important  to 
be  entirely  overlooked.  That  reprisals  are  rather  a 
rough  means  for  the  settlement  of  differences,  and  that 
the  institution  of  reprisals  can  give,  and  has  in  the  past 
given,  occasion  for  abuse  in  case  of  a  difference  between 
a  powerful  and  a  weak  State,  cannot  be  denied.  On 
the  other  hand,  as  there  is  no  court  and  no  central 
authority  above  the  sovereign  States  which  could 
compel  a  delinquent  State  to  make  reparation,  the 
institution  of  reprisals  can  scarcely  be  abolished. 
The  influence  in  the  future  of  the  means  for  setthng 
disputes  which  have  been  evolved  since  1899  remains 
to  be  seen.  If  all  the  States  would  adopt  one  or 
other  of  these  methods  in  all  cases  of  an  alleged  inter- 
national delinquency  which  affected  neither  their 
national  honour  nor  their  vital  interests  and  independ- 
ence, and  if  the  machinery  set  up  by  the  Covenant 
of  the  League  of  Nations  should  be  effective,  acts  of 
reprisal  would  almost  disappear. 

^  See  below,  §  247. 


I 


PACIFIC  BLOCKADE  53 

IV 

PACIFIC  BLOCKADE 

Hall,  §  121— Lawrence,  §  138— Westlake,  ii.  pp.  11-18,  and  Papers,  pp.  572- 
589— Taylor,  §  444— Moore,  vii.  §  1097— Bluntschli,  §§  506-507— Heffter, 
§  112— Bulmerincq  in  HoUztndorff,  iv.  pp.  116-127— Ullniann,  §  162— 
Bonfil3,  Nos.  986-994- Despagnet,  Nos.  496-498— M6rignhac,  iii".  pp. 
60-64- Pradier-Foder^,  v.  Nos.  2483-2489,  vi.  No.  2648— Rivier,  ii. 
§  60— Nys,  ii.  pp.  590-593— Calvo,  iii.  §§  1832-1859— Fiore,  ii.  No. 
1231,  and  Code,  Nos.  1409-1419— Martens,  ii.  105— Holland,  Studies, 
pp.  130-150— Deane,  The  Law  of  Blockade  (1870),  pp.  45-48— Fauchille, 
Ihi  Blocus  maritime  (1882),  pp.  37-67 — Falcke,  Die  Hauptperioden  der 
sogenannten  Friedenahlockader  (1891),  and  in  Z.I.,  xix.  (1909),  pp.  63-175 
— Bar^s,  Le  Blocus  pacijique  (1898) — Ducrocq,  Represaillea  en  Temps  de 
Paix  (1901),  pp.  59-174— Hogan,  Pacific  Blockade  (1908)— SOderquist, 
Le  Blocus  maritime  (1908) — Staudacher,  Die  Friedensblockade  (1909) — 
Drossos,  TO  RPOBAHMA  TON  EIPHNIKfiN  AnOKAEISMQN  (The 
Problem  of  Pacific  Blockades,  1912). 

§  44.  Before    the    nineteenth    century  blockade  was  Develop- 
only  known  as  a  measure  between  belhgerents  in  time  prTc^tice 
of  war.     It  was  not  until  the  second  quarter  of  the°^^*°jj'' 
nineteenth  century  that  a  so-called  pacific  blockade — 
that  is,   a  blockade  during  time  of  peace — was  first 
resorted  to  as  a  compulsive  means  of  settling  an  inter- 
national difference.    AU  cases  of  pacific  blockade  are 
cases  either  of  intervention  or  of  reprisals.^    The  first 
case,   one  of  intervention,   happened  in  1827,   when, 
during  the  Greek  insurrection.  Great  Britain,  France, 
and  Russia  intervened  in  the  interest  of  the  independ- 
ence of  Greece,  and  blockaded  those  parts  of  the  Greek 
coast  which  were  occupied  by  Turkish  troops,     x^lthough 
this  blockade  led  to  the  battle  of  Navarino,  in  which 

^  A  blockade  instituted  by  a  State  as  a  pacific  blockade  sensu  generadi. 

against  portions  of  its  own  territory  Of  course,  necessity  of  self-preserva- 

in  revolt  is  not  a  blockade  for  the  tion  only  can    justify  a  State  that 

purpose    of     settling    international  has  blockaded  one  of  its  own  ports 

differences.     It  has,  therefore,  in  it-  in  preventing  the  egress  and  ingress 

self  nothing  to  do  with  the  Law  of  of /oreign  vessels.     And  the  question 

Nations,  but  is  a  matter  of  internal  might  arise  whether   compensation 

police.     I    cannot,  therefore,  agree  ought    not    to    be    paid    for    losses 

with  Holland,  who,  in  his  Studies  in  sustained  by  foreign  vessels  so  de- 

Intematic/nal  Law,  p.  138,  treats  it  tained. 


54      COMPULSIVE   SETTLEMENT  OF  STATE   DIFFERENCES 

the  Turkish  fleet  was  destroyed,  the  Powers  maintained, 
nevertheless,  that  they  were  not  at  war  with  Turkey. 
In  1831  France  blockaded  the  Tagus  as  an  act  of  reprisal 
for  the  purpose  of  exacting  redress  from  Portugal  for 
injuries  sustained  by  French  subjects.  Great  Britain 
and  France,  exercising  intervention  for  the  purpose  of 
making  Holland  consent  to  the  independence  of  revolt- 
ing Belgiima,  blockaded  the  coast  of  Holland  in  1833. 
In  1838  France  blockaded  the  ports  of  Mexico  as  an 
act  of  reprisal,  but  Mexico  repHed  with  a  declaration  of 
war.  Likewise  as  an  act  of  reprisal,  and  in  the  same 
year,  France  blockaded  the  ports  of  Argentina  ;  and 
in  1845,  conjointly  with  Great  Britain,  France  blockaded 
the  ports  of  Argentina  a  second  time.  In  1850,  in  the 
course  of  her  differences  with  Greece  relative  to  Don 
Pacifico,^  Great  Britain  blockaded  the  Greek  ports,  but 
against  Greek  vessels  only.  Another  case  of  inter- 
vention was  the  pacific  blockade  instituted  in  1860  by 
Sardinia,  in  aid  of  an  insurrection  against  the  then 
Sicihan  ports  of  Messina  and  Gaeta,  but  the  following 
year  saw  the  conversion  of  the  pacific  blockade  into  a 
war  blockade.  In  1862  Great  Britain,  by  way  of  re- 
prisal for  the  plundering  of  a  wrecked  British  merchant- 
man, blockaded  the  Brazihan  port  of  Rio  de  Janeiro. 
The  blockade  of  the  island  of  Formosa  by  France  during 
her  differences  with  China  in  1884,  and  that  of  the  port 
of  Menam  by  France  during  her  differences  with  Siam 
in  1893,  are  likewise  cases  of  reprisals.  On  the  other 
hand,  cases  of  intervention  are  the  blockade  of  the 
Greek  coast  in  1886  by  Great  Britain,  Austria-Hungary, 
Germany,  Italy,  and  Russia,  for  the  purpose  of  pre- 
venting Greece  from  making  war  against  Turkey  ;  and 
further,  the  blockade  of  the  island  of  Crete  in  1897  by 
the  united  Powers.  In  1902,  Great  Britain,  Germany, 
and  Italy  blockaded,  by  way  of  reprisal,  the  coast  of 

*  See  above,  §  35. 


PACIFIC   BLOCKADE  55 

Venezuela,^  and  in  April  1913,  Great  Britain,  Austria- 
Hungary,  Germany,  France  (with  a  mandate  from 
Russia),  and  Italy  blockaded  Antivari  (Montenegro). 

In  December  1916,  during  the  World  War,  the  Allied 
Powers  blockaded  the  coasts  of  Greece,  not  then  a 
belligerent,  by  way  of  reprisals  for  attacks  by  Greek 
forces  on  Allied  troops  in  Athens.  Foreign  neutral  ships 
in  blockaded  ports  were  allowed  four  days  to  depart. ^ 

§  45.  No  mianimity  exists  among  international  la^vye^s  Admissi- 
as  to  whether  pacific  blockades  are  admissible  according  paciL'^ 
to  the  principles  of  the  Law  of  Nations.  There  is  no  blockade, 
doubt  that  the  theory  of  the  Law  of  Nations  forbids  the 
seizure  and  sequestration  of  vessels  other  than  those  of 
the  blockaded  State  for  attempting  to  break  a  pacific 
blockade.  For  even  those  writers  who  maintain  the 
admissibihty  of  pacific  blockade  assert  this.  What  is 
controverted  is  whether  according  to  International  Law 
the  coast  of  a  State  may  be  blockaded  at  all  in  time 
of  peace.  From  the  first  recorded  instance  to  the  last, 
several  writers  ^  of  authority  have  denied  that  it  can. 
On  the  other  hand,  many  writers  say  that  it  may,  differ- 
ing among  themselves  only  as  to  whether  vessels  saihng 
under  the  flag  of  third  States  could  be  prevented  from 
entering  or  leaving  ports  under  pacific  blockade.  The 
Institute  of  International  Law  carefully  studied  the  ques- 
tion in  1887,  discussed  it  at  its  meeting  in  Heidelberg, 
and  finally  voted  a  declaration  *  in  favour  of  the  admissi- 
bihty of  pacific  blockades.  Thus  the  most  influential 
body  of  theorists  approved  what  had  been  established 
before  by  practice.    There  ought  to  be  no  doubt  that  the 

^  This  blockade,  although  repre-  "  See    The    Times,    December    9, 

sented  as  a  war  blockade  so  that  the  1916,  and  A.J.,  xii.  (1918),  p.  806. 
ingress  of  foreign  vessels  might  be  ^  The    leader  of  these  ^Titers  is 

prevented,   was  nevertheless  essen-  Hautefeuille,  Dea  Droits  et  des  De- 

tially  a  pacific  blockade.   See  Holland  voirs  des  yatiom   neutres   ('2ud   ed. 

in  the   Laic  Quarterly  Review,  xix.  1858),  vol.  ii.  pp.  272-288. 
(1903),  p.  133;  Pari.  Papers,  Vene-  *  See   Annuairc,    ix.    (1887),    pp. 

zuela,  No.  1  (1903),  Cd.  1399.  275 -301. 


56      COMPULSIVE   SETTLEMENT  OF  STATE  DIPFERENCES 

numerous  cases  of  pacific  blockade  which  occurred  during 
the  nineteenth  century  and  since  have,  through  tacit  con- 
sent of  the  members  of  the  Family  of  Nations,  established 
the  admissibihty  of  pacific  blockades  for  the  settlement 
of  pohtical  as  well  as  of  legal  international  differences. 
Pacific  §  46.  It  has  akeady  been  stated  that  all  writers  agree 

an?  ^  that  the  blockading  State  has  no  right  to  seize  and 
^8^13  of  sequestrate  such  ships  of  third  States  as  try  to  break  a 
states,  pacific  blockadc.  Apart  from  this,  no  unanimity  exists 
as  to  the  position  of  ships  of  third  States  in  a  case  of 
pacific  blockade.  Some  German  writers  ^  maintain 
that  they  have  to  respect  the  blockade,  and  that  the 
blockading  State  has  a  right  to  stop  those  which  try 
to  break  it.  The  vast  majority  of  writers,  however, 
deny  such  a  right.  There  is,  in  fact,  no  rule  of  Inter- 
national Law  which  could  estabhsh  such  a  right,  as 
pacific  (in  contradistinction  to  belhgerent)  blockade  is 
a  mere  matter  between  the  conflicting  parties.  The 
declaration  of  the  Institute  of  International  Law  in 
favour  of  pacific  blockade  contains,  therefore,  the  con- 
dition :  *  Les  navires  de  pavilion  etranger  peuvent 
entrer  librement  malgre  le  blocus.' 

Practice  has  varied.  Before  1850  ships  of  third  States 
were  expected  to  respect  a  pacific  blockade,  and  such 
as  tried  to  break  it  were  seized,  and  restored  at  the 
termination  of  the  blockade  without  compensation. 
During  the  blockade  of  Greece  in  1850  and  1886,  Greek 
ports  were  only  closed  for  Greek  ships,  and  others  were 
allowed  to  pass  through.  And  the  same  was  the  case 
during  the  blockade  of  Crete  in  1897.  On  the  other 
hand,  when  France  instituted  a  blockade  of  Formosa 
in  1884  and  tried  to  enforce  it  against  ships  of  third 
States,  Great  Britain  declared  that  a  pacific  blockade 
could  not  be  so  enforced  ;  whereupon  France  had  to 
drop  her  intended  estabhshment  of  a  pacific  blockade, 

^  See  Heffter,  §  112  ;  Perels,  §  30. 


PACIFIC  BLOCKADE  57 

and  consider  herself  at  war  with  China.  And  when 
in  1902  Great  Britain,  Germany,  and  Italy  instituted  a 
blockade  against  Venezuela,  they  declared  it  a  war 
blockade  ^  because  they  intended  to  enforce  it  against 
vessels  of  third  States. 

§  47.  Theory  and  practice  seem  nowadays  to  agree  Pacific 
that  the  ships  of  a  State  under  pacific  blockade  which  and^^*^® 
try  to  break  the  blockade  may  be  seized  and  seques-  ^^esseis  of 
trated.     But  they  may  not  be  condemned  and  con-  aded 
fiscated,  but  must  be  restored  at  its  termination.     Thus,  '^^^^' 
although  the  Powers  which  had  instituted  a  blockade 
against  Venezuela  in  1902  declared  it  a  war  blockade, 
all  Venezuelan  public  and  private  ships  seized  were 
restored  after  the  blockade  was  raised. 

§  48.  Pacific  blockade  is  a  measure  of  such  enormous  Manner 
consequences  that  (quite  apart  from  the  obhgations  of  BiSade. 
members  of  the  League  of  Nations  under  the  Covenant) 
it  can  be  justified  only  after  the  failure  of  negotiation  to 
settle  the  questions  in  dispute.  And  further,  as  blockade, 
being  a  violation  of  the  territorial  supremacy  of  the 
blockaded  State,  is  prima  facie  of  a  hostile  character, 
it  is  necessary  for  such  State  as  intends  in  time  of  peace 
to  blockade  another  State  to  notify  its  intention  to 
the  latter,  and  to  fix  the  day  and  hour  for  the  establish- 
ment of  the  blockade.  And,  thirdly,  although  the 
Declaration  of  Paris  of  1856  enacting  that  a  blockade 
to  be  binding  must  be  effective  concerns  blockades  in 
time  of  war  only,  there  can  be  no  doubt  that  pacific 
blockades  ought  likewise  to  be  effective.  The  declara- 
tion of  the  Institute  of  International  Law  in  favour  of 
pacific  blockade  contains,  therefore,  the  condition  :  '  Le 
blocus  pacifique  doit  etre  declare  et  notifie  ofiiciellement, 
et  maintenu  par  une  force  suffisante.'  ^ 

^  That   this   blockade  was  essen-  this  declaration,  referred  to  above, 

tially  a  pacific  blockade  I  have  al-  §  45  : — 

ready  stated  above,  §  44.  L'^tablissement    d'un    blocus    en 

-  The  following,  is  the  full  text  of  dehors  de  T^tat  de  guerre  ne  doit 


58      COMPULSn^E   SETTLEMENT  OF  STATE   DIFFERENCES 

Value  of  §  49.  As  the  establishment  of  a  pacific  blockade  has 
Sock°ade.  "^  various  iiistances  not  prevented  the  outbreak  of 
hostiUties,  its  value  as  a  means  of  non-hostile  settle- 
ment of  international  differences  is  doubted  by  many- 
writers.  But  others  agree,  and  I  think  they  are  right, 
that  the  institution  is  of  great  value,  be  it  as  an  act  of 
reprisal  or  of  intervention.  Every  measure  which  is 
suitable  and  calculated  to  prevent  the  outbreak  of  war 
must  be  welcomed,  and  experience  shows  that  pacific 
blockade  is,  although  not  universally  successful,  a 
measm-e  of  this  kind.  That  it  can  give,  and  has  in 
the  past  given,  occasion  for  abuse  in  case  of  a  difference 
between  a  strong  and  a  weak  Power  is  no  argument 
against  it,  as  the  same  is  valid  with  regard  to  reprisals 
and  intervention  in  general,  and  even  to  war.  And 
although  it  is  naturally  a  measure  which  will  scarcely 
be  made  use  of  in  case  of  a  difference  between  two 
powerful  naval  States,  it  might  nevertheless  find  applica- 
tion with  success  against  a  powerful  naval  State  if 
exercised  by  the  united  navies  of  several  Powers. 


INTERVENTION 

See  the  literature  quoted  above  in  vol.  i.  at  the  commencement  of  §  134. 

interven-  §  50.  Intervention  as  a  means  of  settling  inter- 
con^rTdis-  national  differences  is  only  a  special  kind  of  interven- 
tinctiontotion  iu  general,  which  has  already  been  discussed.^  It 
tion  in  a    cousists  in  the  dictatorial  interference  of  a  third  State  in  a 

Differ- 
ence, etre  consid^r^  comrae  permis  par  le  '  3  Les  navires  de  la  puissance 
droit  des  gens  que  sous  les  condi-  bloqu^e  qui  ne  respectent  pas  un 
tions  suivantes  :  pareil  blocus  peuvent  etre  s^questr^s. 
'  1.  Les  navires  de  pavilion  6tran-  Le  blocus  ayant  ce3s6,  ils  doivent 
ger  peuvent  entrer  librement  malgr6  etre  restitu6s  avec  leurs  cargaisons  k 
le  blocus.  leurs  propri6taires,  mais  sans  d6dom- 

'2.   Le  blocus  pacifique  doit  etre  magement  ^  aucun  titre.' 
d6clar6  et  notifife  officielleraent,   et 

maintenu  par  une  force  suffieante,  *  See  above,  vol,  i,  §§  134-138, 


INTERVENTION  59 

difference  between  two  States,  for  the  purpose  of  settling 
the  difference  in  the  way  demanded  by  the  intervening 
State.  This  dictatorial  interference  takes  place  for  the 
purpose  of  exercising  compulsion  upon  one  or  both  of  the 
parties  in  confhct,  and  must  be  distinguished  from  such 
an  attitude  of  a  State  as  makes  it  a  party  to  the  conflict. 
If  two  States  are  in  conflict,  and  a  third  State  joins  one 
of  them  out  of  friendship  or  from  any  other  motive, 
that  third  State  does  not  exercise  intervention  as  a 
means  of  setthng  international  differences,  but  becomes 
a  party  to  the  confhct.  If,  for  instance,  an  alhance 
exists  between  one  of  two  States  in  confhct  and  a  third, 
and  if  eventually,  as  war  has  broken  out  in  consequence 
of  the  confhct,  that  third  State  comes  to  the  help  of  its 
ally,  no  intervention  in  the  technical  sense  of  the  term 
takes  place.  A  State  intervening  in  a  dispute  between 
two  other  States  does  not  become  a  party  to  their 
dispute,  but  is  the  author  of  a  new  imbrogho,  because  it 
dictatorially  requests  those  other  States  to  settle  their 
difference  in  a  way  to  which  both,  or  at  any  rate  one 
of  them,  objects.  An  intervention,  for  instance,  takes 
place  when,  although  two  States  in  confhct  have  made 
up  their  minds  to  fight  it  out  in  war,  a  third  State 
dictatorially  requests  them  to  settle  their  dispute 
through  arbitration. 

Intervention  in  the  form  of  dictatorial  interference 
must,  further,  be  distinguished  from  efforts  of  a  State 
directed  to  induce  the  States  in  conflict  to  settle  their 
difference  amicably,  such  as  proffering  its  good  offices 
or  mediation,  or  gi\'ing  friendly  advice.  Some  jurists  ^ 
speak  incorrectly  of  good  offices  and  the  like  as  '  amic- 
able '  in  contradistinction  to  '  hostile  '  intervention. 

§  51.  Intervention  in  a  difference  between  two  States  Mode  of 
takes  the  form  of  a  communication  to  one  or  both  of  tion. 
the  conflicting  States  with  a  dictatorial  request  for  the 

*  Thus,  for  instance,  Rivier,  ii.  §  58.     See  also  above,  vol.  i.  §  134. 


60      COMPULSIVE   SETTLEMENT  OF  STATE   DIFFERENCES 

settlement  of  the  conflict  in  a  certain  way  ;  for  instance 
by  arbitration,  or  by  the  acceptance  of  certain  terms. 
One  State  may  intervene  alone  or  several  States  may 
inter\'ene  collectively.     If  the  parties  comply  with  the 
request,  the  intervention  is  terminated.     If,  however, 
one   or   both   parties   fail    to    comply,    the   interven- 
tion will  be  abandoned,  or  action  more  stringent  than 
a   mere   request,    such    as   pacific    blockade,    mihtary 
occupation,  and  the  like,  will  be  taken.    Even  war  can 
be  declared  for  the  purpose  of  an  intervention.     Of 
special    importance    are    the    collective    interventions 
exercised  by  several  great  Powers  in  the  interest  of  the 
balance  of  power,  and  of  humanity.^ 
Time  of        §  52.  An  intervention  in  a  difference  between  two 
tioa."^^"'  States  can  take  place  at  any  time  from  the  moment  a 
conflict  arises  till  the  moment  it  is  settled,  and  even 
immediately    after    the    settlement.     In    many    cases 
interventions  have  taken  place  before  the  outbreak  of 
war  between  two  States  for  the  purpose  of  preventing 
war  ;  in  other  cases  third  States  have  intervened  during 
a  war  which  had  broken  out  in  consequence  of  a  conflict. 
Interventions  have,  further,  taken  place  immediately 
after  the  peaceable  settlement  of  a  difference,  or  after 
the  termination  of  war  by  a  treaty  of  peace  or  by 
conquest,  on  the  grounds  that  the  conditions  of  the 
settlement,  or  the  treaty  of  peace,  were  against  the 
interests  of  the  intervening  State,  or  because  the  latter 
would  not  consent  to  the  annexation  of  the  conquered 
State  by  the  victor.^ 

^  See  above,  vol.  i.  §§  136,  137.  of  a  right,  and  to  all  other  details 

^  With  regard  to  the  question  of  concerning  intervention,  the  reader 

the  right  of   intervention,   the  ad-  must  be  referred  to  vol.  i.   §§  135- 

missibility  of  intervention  in  default  138. 


ECONOMIC    BOYCOTT  61 

VI 

ECONOMIC  BOYCOTT 

§  52a.  Such  were  the  measures  of  compulsion  avail-  The  so- 
able  for  the  settlement  of  disputes  before  the  World  5.iint)mi 
War.  But  the  experiences  of  that  struggle  revealed  i^oycott. 
the  potentialities  of  a  new  form  of  pressure,  the  so- 
called  economic  boycott  or  blockade.  To  be  cut  off 
from  the  resources  of  neighbouring  States  and  driven 
into  isolation  was  found  to  be  a  terrible  phght  for  a 
highly  developed  modern  State ;  and  this  discovery 
gave  prominence  to  the  idea  that  by  prohibiting  all 
trade  and  financial  relations  and  all  personal  associa- 
tion with  the  subjects  of  a  recalcitrant  State,  other 
States  would  be  able  to  compel  comphance  with  their 
demands.  It  is  too  early  as  yet  to  estimate  the  value 
of  the  new  method,  which  naturally  has  a  place  in  the 
constitution  of  a  League  of  Nations  inspired  by  the 
lessons  of  the  war,  and  is  the  first  punishment  to  be 
imposed  by  Article  16  on  a  member  which  breaks  its 
covenants.  In  each  particular  instance  its  effectiveness 
must  depend,  not  only  upon  the  number  of  States  com- 
bining to  use  it,  but  also  upon  the  extent  to  which  the 
offending  State  normally  reUes  upon  those  States,  the 
strength  of  its  own  internal  resources,  and  its  power 
to  retaliate  upon  those  who  seek  to  constrain  it. 


PART  II 

WAH 


CHAPTER   1 

ON  WAR   IN   GENERAL 

I 

CHARACTERISTICS   OF  WAR  ^ 

Grotius,  i.  c.  1,  §  2— Vattel,  iii.  §§  1-4,  69-72— Hall,  §§  15-18- Westlake, 
ii.  pp.  1-5 — Lawrence,  §  135 — Loiimer,  ii.  pp.  18-29 — Manning,  pp. 
131-133— Phillimore,  iii.  §  49— Twiss,  ii.  §§  22-29— Taylor,  §§  449-451— 
Hershey,  Nos.  326-336  —  Wheaton,  g  295— Bluntschli,  §§  510-514— 
Heffter,  §§  113-114— Lueder  in  Holtztndorff,  iv.  pp.  175-198— Heilborn 
in  Stier-Somlo,  i.  pp.  22-25  —  Kliiber,  §§  235-237— G.  F.  Martens,  ii. 
§  203— Ullmann,  §  165— Bonfils,  Nos.  1000-1001— Despagnet,  Nos.  499- 
505 — Pradier-Fod6r^,  vi.  Nos.  2650-2660 — M^rignhac,  iii".  pp.  9-19 — 
Rivier,  ii.  §  61— Nys,  iii.  pp.  1-28— Calvo,  iv.  §§  18601864— Fiore,  iii. 
Nos.  1232-1268— Martens,  ii.  §  106— Westlake,  Chapters,  pp.  258-264— 
Heilborn,  System,  pp.  .321-332 — Rettich,  Zur  Theorie  und  Geschichte  des 
Rechta  zum  Kriege  (1888),  pp.  3-141 — Wiesse,  Le  Droit  international 
appUqu4  aux  Guerres  civiles  (1898) — Rougier,  Les  Guerres  civilet  et  le 
Droit  des  Gens  (1903)— Higgins,  War  and  the  Private  Citizen  (1912), 
pp.  3-70 — Grosch,  Der  Zwang  im  Volkerrecht  (1912),  passim,  especiallj' 
p.  63 — Lammasch,  Das  Volkerrecht  nach  dem  Kriege  {1911),  pp.  174-187 — 
Jerusalem,  Kriegsrecht  und  Kodification  (1918). 

§  53.  As  within  the  boundaries  of  the  modern  State  War  no 
an  armed  contention  between  two  or  more  citizens  *^*  *^^' 
is  illegal,  public  opinion  has  become  convinced  that 
armed  contests  between  citizens  are  inconsistent  with 
Municipal  Law.  Influenced  by  this  fact,  impatient 
pacifists,  as  well  as  those  innumerable  individuals  who 
cannot  grasp  the  idea  of  a  law  between  sovereign 
States,  frequently  consider  war  and  law  inconsistent. 

^  Many  statements  in  §§  53-66  of  the  causes,  kinds,  and  ends  of  war, 

this  chapt€r  have  been  the   object  are  intended  to  give  a  realistic  an- 

of  such  violent  criticism  and  attack  alysis  of  the  facts  of  life.     I  do  not 

that  I  consider  it  advisable  to  point  teach   what   war  ought   to  be,   but 

out    that  my  assertions  concerning  what  it  actually  is  according  to  the 

the  characteristics  of  war,  as  well  as  practice  of  the  States. 


VOL.    II. 


65 


66  ON  WAR  IN  GENERAL 

They  quote  the  fact  that  wars  are  frequently  waged  by 
States  as  a  proof  against  the  very  existence  of  an  Inter- 
national Law.  It  is  not  difficult  to  show  the  absurdity 
of  this  opinion.  As  States  are  sovereign,  and  as  con- 
sequently no  central  authority  exists  above  them,  able 
to  enforce  compHance  with  its  demands,  war  cannot, 
under  the  existing  conditions  and  circumstances  of  the 
Family  of  Nations,  always  be  avoided.  International 
Law  recognises  this  fact,  but  at  the  same  time  provides 
regvdations  with  which  belligerents  have  customarily, 
or  by  special  conventions,  agreed  to  comply.  Although 
with  the  outbreak  of  war  peaceable  relations  between 
the  beUigerents  cease,  there  remain  certain  mutual 
legal  obhgations  and  duties.  Thus  war  is  not  incon- 
sistent with,  but  a  condition  regulated  by,  International 
Law.  It  does  not  object  to  States  which  are  in  conflict 
waging  war  upon  each  other,  provided  they  have — in 
comphance  with  the  Covenant  of  the  League  of  Nations 
— previously  submitted  the  dispute  to  an  inquiry  by 
the  Council  of  the  League.  Whenever  they  choose  to 
go  to  war,  they  have  agreed  to  comply  with  the  rules 
laid  down  by  International  Law  regarding  the  conduct 
of  war,  and  the  relations  between  belHgerent  and 
neutral  States. 

It  is  maintained  ^  that  this  conception  of  war  as 
lacking  illegality  includes  an  absolute  right  of  every 
State  to  make  war,  whenever,  and  for  whatever  reason, 
it  chooses  ;  but  this  view  is  based  on  a  misunderstand- 
ing. The  assertion  that  war  is  no  illegahty  is  only 
directed  against  those  who  maintain  that  war  and  law 
are  inconsistent,  an  opinion  which  overlooks  the  facts 
mentioned  above.  That  International  Law,  if  it  could 
forbid  war  altogether,  or  permit  it  only  under  certain 
circumstances,  would  be  a  more  perfect  law  than  it  is 
at  present,  there  is  no  doubt.     Yet  eternal  peace  is  an 

1  See  Hill,  World  Organisation  (1911),  pp.  178-186. 


CHARACTERISTICS   OF  WAR  G7 

impossibility  in  the  conditions  and  circumstances  under 
which  mankind  at  present  lives,  although  it  is  certainly 
an  ideal  of  civihsation  which  will  slowly  and  gradually 
be  realised.  The  same  factors  make  it  at  present 
impossible  ^  to  prevent  the  outbreak  of  war  for  any 
other  purpose  than  '  the  recognition  of  a  right  denied, 
or  to  redress  a  wrong  inflicted/ 

§  54.  War  is  the  contention  between  two  or  more  Concep- 
States  through  their  armed  forces,  for  the  purpose  of  ;vrr.^ 
overpowering  each  other,  and  imposing  such  conditions 
of  peace  as  the  victor  pleases.)  War  is  a  fact  recognised, 
and  with  regard  to  many  points  regulated,  but  not 
estabUshed,  by  International  Law.  Those  writers  ^  who 
define  war  as  the  legal  remedy  of  self-help  to  obtain 
satisfaction  for  a  wrong  sustained  from  another  State, 
forget  that  wars  have  often  been  waged  by  both  parties 
for  pohtical  reasons  only ;  they  confound  a  possible, 
but  not  at  all  necessary,  cause  of  war  with  the  concep- 
tion of  war.  A  State  may  be  driven  into  war  because 
it  camiot  otherwise  get  reparation  for  an  international 
dehnquency,  and  may  then  maintain  that  it  exercises 
by  war  nothing  else  than  legally  recognised  self-help. 
But  when  States  are  driven  into,  or  dehberately  wage, 
war  for  pohtical  reasons,  no  legally  recognised  act  of 
self-help  is  performed  by  the  war ;  and  the  same  laws 
of  war  are  valid,  whether  wars  are  waged  on  account  of 
legal  differences  or  pohtical  differences. 

§  55.  In  any  case,  it  is  universally  recognised  that  War  a 
war  is  a  contention,  i.e.  a  violent  struggle  through  the  ^^^^' 
a'pplication  of  armed  force.     For  a  war  to  be  in  existence, 
two  or  more  States  must  actually  have  their  armed 
forces  fighting  against  each  other,  although  its  com- 
mencement may  date  back  to  a  declaration  of  war, 

^  As  Avill  be  shown  below,  §§  62,        §  1  ;  Phillimore,  iii.  §  49 ;  Twiss,  ii. 
63.  §  26  ;  Bluntachli,  §  510  ;  Bulmerincq, 

*  See,   for   instance,    Vattel,    iii.        §  92, 


68  ON  WAR   m  GENERAL 

or  some  other  unilateral  initiative  act.  Unilateral  acts 
of  force  performed  by  one  State  against  another  without 
a  previous  declaration  of  war  may  be  a  cause  of  the 
outbreak  of  war,  but  are  not  war  in  themselves,  as  long 
as  they  are  not  answered  by  similar  hostile  acts  by  the 
other  side,  or  at  least  by  a  declaration  of  the  other  side 
that  it  considers  them  to  be  acts  of  war.  Thus  it  comes 
about  that  acts  of  force  performed  by  one  State  against 
another  by  way  of  reprisal,  or  during  a  pacific  blockade 
in  the  case  of  an  intervention,  are  not  necessarily  acts 
initiating  war.  And  even  acts  of  force  illegally  per- 
formed by  one  State  against  another — ^for  instance, 
occupation  of  a  part  of  its  territory — are  not  acts  of 
war  so  long  as  they  are  not  met  with  acts  of  force  from 
the  other  side,  or  at  least  with  a  declaration  that  it 
considers  them  to  be  acts  of  war.  Thus,  when  Louis  xrv. 
of  France,  after  the  Peace  of  Nymeguen,  instituted  the 
so-called  Chambers  of  Reunion,  and  in  1680  and  1681 
seized  the  territory  of  the  then  Free  Town  of  Stras- 
burg,  and  other  parts  of  the  German  Empire,  without 
meeting  with  armed  resistance,  these  acts  of  force, 
although  doubtless  illegal,  were  not  acts  of  war. 

Though  war  is  a  contention,  a  violent  struggle  through 
the  appHcation  of  armed  force,  other  measures  may 
be  incidentally  apphed  in  connection  therewith.  This 
appears  from  the  institution  of  blockade,  the  prohibition 
of  the  carriage  of  contraband,  or  trading  with  the  enemy, 
or  from  the  capture  of  sea-borne  enemy  property.  The 
object  of  all  these  measures  is  the  weakening,  or  destruc- 
tion, of  the  economic  power  of  resistance  of  the  enemy  ; 
but  it  could  not  be  achieved  without  apphcation  of 
armed  force. 
War  a  §  56.  To  be  war,   the  contention  must  be  between 

tum^^'    ^^tcttes.     In    the    Middle    Ages    wars    between    private 
between    individuals,   so-called  private  wars,  were  known,  and 
wars  between  corporations,  as  the  Hansa  for  instance, 


CHARACTERISTICS  OF  WAR  69 

and  States.  But  such  wars  have  totally  disappeared 
in  modern  times.  A  contention  may,  of  course,  arise 
between  the  armed  forces  of  a  State  and  a  body  of  armed 
individuals,  but  this  ^  is  not  war.  Thus  the  contention 
between  the  raiders  under  Dr.  Jameson  and  the  former 
South  African  Repubhc  in  January  1896  was  not  war. 
Nor  is  a  contention  with  insurgents  or  with  pirates  a 
war.  And  a  so-called  civil  war  ^  need  not  be  war  from 
the  begimiing,  and  may  not  become  war  at  all,  in  the 
technical  sense  of  the  term  in  International  Law.  On 
the  other  hand,  to  an  armed  contention  between  a 
suzerain  and  its  vassal  ^  State  the  character  of  war 
ought  not  to  be  denied,  for  both  parties  are  States, 
although  the  action  of  the  vassal  may,  from  the  stand- 
point of  Constitutional  Law,  be  rebelHon.  And  likewise 
an  armed  contention  between  a  full  sovereign  State 
and  a  State  under  the  suzerainty  of  another  State,  as, 
for  instance,  that  between  Serbia  and  Bulgaria  *  in 
1885,  is  war.  Again,  an  armed  contention  between 
one  or  more  member- States  of  a  Federal  State  and  the 
Federal  State  itself  ought  to  be  considered  as  war  in 
International  Law,  although,  according  to  the  constitu- 
tion of  Federal  States,  war  between  the  member-States, 
as  well  as  between  any  member-State  and  the  Federal 
State  itself,  is  illegal,  and  recourse  to  arms  by  a  member- 
State  may  therefore,  from  the  standpoint  of  the  con- 
stitution, correctly  be  called  rebelhon.  Thus  the  War 
of  Secession  within  the  United  States  between  the 
Northern  and  the  Southern  member-States  in  1861- 
1865  was  real  war. 

§  57.  War  nowadays  is  a  contention  of  States  through 
their  armed  forces.^    Those  private  subjects  of  the  belU- 

*  Some  publicists  maintain,  how-  *  See  below,  §  59. 

ever,   that  a  contention  between  a  3  ggg  below    §  75 

State  and  the  armed  forces  of  a  party 

fighting  for  public  rights  must   be  Bulgaria  was  at  that  time  still  « 

considered  as  war.  See,  for  instance,  vassalStateunderTurkish  suzerainty. 
Bluntschli,  §512,  and  riore,iii.§  1265.  *  See,  however,  below,  §  57a. 


70  ON  WAR  IN  GENERAL 

War  a  gereiits  who  do  not  directly  or  indirectly  belong  to  the 

tion  armed  forces  do  not  take  part  in  it :  they  do  not  attack 

sts^tes^  and  defend  ;  and  no  attack  ought  therefore  to  be  made 

through  upon  them.    This  is  the  result  of  an  evolution  of  practices 

Armed  n  •  •  •  • 

Forces,  totally  different  from  those  m  vogue  m  former  times. 
During  antiquity,  and  the  greater  part  of  the  Middle 
Ages,  war  was  a  contention  between  the  whole  popula- 
tions of  the  belhgerent  States.  In  time  of  war  every 
subject  of  one  belhgerent,  whether  an  armed  and  fighting 
individual  or  not,  whether  man  or  woman,  adult  or 
infant,  could  be  killed  or  enslaved  by  the  other  belh- 
gerent at  will.  But  gradually  a  milder  and  more  dis- 
criminating practice  grew  up,  and  nowadays  the  life 
and  liberty  of  such  private  subjects  of  belhgerents  as 
do  not  directly  or  indirectly  belong  to  their  armed 
forces,  and,  with  certain  exceptions,  their  private  pro- 
perty, ought  to  be  safe. 

This  is  generally  admitted.  But  opinions  disagree 
as  to  the  general  position  of  such  private  subjects  in 
time  of  war.  The  majority  of  the  European  Continental 
writers  for  three  generations  before  the  World  War 
propagated  the  doctrine  that  no  relation  of  enmity 
existed  between  belhgerents  and  such  private  subjects, 
or  between  the  private  subjects  of  the  respective  belh- 
gerents. This  doctrine  went  back  to  Rousseau.^  In 
1801,  at  the  opening  of  the  French  Prize  Court,  the 
famous  lawyer  and  statesman  Portahs  adopted 
Rousseau's  ^  doctrine  by  declaring  that  war  is  a  rela- 
tion between  States,  and  not  between  individuals,  and 
that  consequently  the  subjects  of  the  belhgerents  are 
only  enemies  as  soldiers,  not  as  citizens.  Although  this 
new  doctrine  did  not  ^  spread  at  once,  from  the  second 
half  of  the  nineteenth  century  it  was  proclaimed  on 

*  Control  Social,  i.  o.  4.  Jacquea  Roiisseau  et  le  Droit  dee  Oene 

(1906). 

*  See    Lassudrie  -  Duchene,    Jean  ^  As  Hall  (§  18)  shows. 


CHARACTERISTICS   OF   WAR  71 

the  European  Continent  by  the  majority  of  writers. 
British  and  American-Enghsh  writers,  however,  never 
adopted  it,  but  always  maintained  that  the  relation  of 
enmity  between  the  belhgerents  extends  also  to  their 
private  citizens. 

I  think,  if  the  facts  of  war  are  taken  into  considera- 
tion without  prejudice,  there  ought  to  be  no  doubt  that 
the  British  and  American  view  is  correct.^  It  is  impos- 
sible to  sever  the  citizens  from  their  State,  and  the  out- 
break of  war  between  two  States  cannot  but  make  their 
citizens  enemies.  But  the  point  is  unworthy  of  dispute, 
because  it  is  only  one  of  terms  without  any  material 
consequences.  '^  For,  apart  from  terminology,  the  parties 
agree  in  substance  upon  the  rules  of  the  Law  of  Nations 
regarding  such  private  subjects  as  do  not  directly  or 
indirectly  belong  to  the  armed  forces.^  Nobody  doubts 
that  they  ought  to  be  safe  as  regards  their  life  and 
liberty,  provided  they  behave  peacefully  and  loyally ; 
and  that,  mth  certain  exceptions,  their  private  pro- 
perty should  not  be  touched.  On  the  other  hand, 
nobody  doubts  that,  according  to  a  generally  recog- 
nised custom  of  modern  warfare,  the  belhgerent  who 
has  occupied  a  part  or  the  whole  of  his  opponent's 
territory,  and  treats  such  private  individuals  leniently 
according  to  the  rules  of  International  Law,  may 
punish  them  for  any  hostile  act,  since  they  do  not  enjoy 
the  privileges  of  members  of  armed  forces.  Although 
International  Law  by  no  means  forbids,  and,  as  a  law 
between  States,  is  not  competent  to  forbid,  private 
individuals  from  taking  up  arms  against  an  enemy,  it 
does  give  a  right  to  the  enemy  to  treat  hostihties  com- 
mitted by  them  *  as  acts  of  illegitimate  warfare.     A 

^  See  Boidin,  pp.  32-44.  Zukunft  des  Volkerrechts  (1911),  pp. 

59-61. 

*  But   many   Continental  writers  *  SeeBreton,  Lea Xon-bellig^rants: 

constantly  make  use  of  Rousseau's       leurs  Devoirs,  leurs  Droits,  et  la  Ques- 
dictum  in  order  to  defend  untenable       tion  de»  Otages  (1904). 
poaitions.       See     Oppenheim,     Die  *  See  below,  §  254. 


72  ON   WAR  IN  GENERAL 

belligerent  is  under  a  duty  to  respect  the  life  and  liberty 
of  private  enemy  individuals,  which  he  can  carry  out 
only  on  condition  that  they  abstain  from  hostihties 
against  him.  Through  niihtary  occupation  in  war 
they  fall  under  the  military  authority  ^  of  the  occupant, 
and  he  may  therefore  demand  that  they  comply  with 
his  orders  regarding  the  safety  of  his  forces.  The  posi- 
tion of  private  enemy  individuals  is  made  known  to 
them  through  the  proclamations  which  the  commander- 
in-chief  of  an  army  occupying  the  territory  usually 
pubhshes. 

Owing  to  their  position  it  is  inevitable  that  he  should 
consider  and  mark  as  criminals  such  of  them  as  commit 
hostile  acts,  although  they  may  act  from  patriotic 
motives,  and  may  be  highly  praised  for  their  acts  by 
their  compatriots.  The  high-sounding  and  well-meant 
words  of  Baron  Lambermont,  one  of  the  Belgian  dele- 
gates at  the  Conference  of  Brussels  of  1874—'  II  y  a 
des  choses  qui  se  font  a  la  guerre,  qui  se  feront  toujom's, 
et  que  Ton  doit  bien  accepter.  Mais  il  s'agit  ici  de  les 
convertir  en  lois,  en  prescriptions  positives  et  Inter- 
nationales. Si  les  citoyens  doivent  etre  conduits  au 
suppHce  pour  avoir  tente  de  defendre  leur  pays  au  peril 
de  leur  vie,  il  ne  faut  pas  qu'ils  trouvent  inscrits  sur  le 
poteau  au  pied  duquel  ils  seront  fusilles  I'article  d'un 
traite  signe  par  leur  propre  gouvernement  qui  d'avance 
les  condamnait  a  mort ' — have  no  raison  d'etre  in  face 
of  the  fact  that,  according  to  a  generally  recognised 
customary  rule  of  International  Law,  hostile  acts  on 
the  part  of  private  individuals  are  not  acts  of  legitimate 
warfare,  and  the  offenders  may  be  treated  and  punished 
as  war  criminals.     Even  those  writers  ^  who  object  to 

^  The  first  edition  of  this  work  sovereignty  in  the  occupant,  but  only 

was  wrong  in  stating  that  through  actual  authority,  this  authority  may 

military  occupation  private   enemy  not  be  called  territorial  supremacy. 
individuals  fall  under  the  territorial 

«tiprema,ci/  of   the  occupant.     Since  *  See,  for  instance,  Hall,  §  18,  p. 

miliUry  occupation  by  no  means  vests  71,  and  Westlake,  Papers,  p.  268. 


\ 


CHARACTERISTICS  OF   WAR  73 

the  term  '  criminals  '  do  not  deny  that  such  hostile 
acts  by  private  individuals,  in  contradistinction  to 
hostile  acts  by  members  of  the  armed  forces,  may  be 
severely  punished.  The  controversy  whether  or  not  such 
acts  may  be  styled  '  crimes '  is  again  only  one  of  termin- 
ology ;   materially  the  rule  is  not  at  all  controverted.^ 

§  57a.  The  time-honoured  distinction  between  members  Recent 

D    •  1 

of  the  armed  forces  and  civiHans  is  threatened  by  four  n,ents°^ 
developments  which  appeared  during  the  World  War.     l^^'^^H^ 

(1)  Wars  are  nowadays  fought  by  whole  nations  in  tinction 
arms.     Not  only  has  conscription  carried  the  day,  the  Aime^d" 
whole  male  population  of  mihtary  age  being  enrolled  ^^^j^^' 
in  the  fighting  forces  ;   all  other  men  and  all  fit  women  civilians. 
are  asked,   or  even  compelled,  to  assist  the  fighting 
forces  as  workers  in  munition  factories,  and  to  under- 
take all  kinds  of  other  work,  so  as  to  release  fit  men  of 
military  age  for  the  armies.     During  the  World  War, 
thousands  of  women  were  enrolled  and  sent  to  the 
front  as  cooks,  drivers,  store-keepers,  etc.,  for  the  army, 

to  take  the  place  of  soldiers  previously  so  employed. 
Russia  even  admitted  women  into  the  ranks  as  soldiers. 

(2)  The  development  of  aerial  warfare.  The  fact 
that  it  has  been  considered  legitimate  for  air  vessels 
to  bombard,  outside  the  theatre  of  war,  munition 
factories,  bridges,  railway  stations,  and  other  objects 

of  value  for  military  communication  and  preparation,       , 
must  necessarily  blur,  or  even  efface,  the  distinction      / 
between  members  of  the  armed  forces  and  civilians.     / 
Air  vessels  cannot  aim  ^dth   any  precision  at   their 
direct  objects  ;    and,  if  they  undertake  bombardment 
by  night,  such  aim  would  seem  to  be  entirely  impossible. 

(3)  Democracy  has  for  the  most  part  conquered  the 
world,  so  that  wars  are  no  longer  dynastic  but  national. 

^  See  below,  §  2ol,  and  Articles  States  in  the  Field,  published  in 
20-26  of  the  Instructions  for  the  1863  during  the  War  of  Seces- 
Govemment  of  Armiea  of  the  United       sion. 


74  ON   WAR   IN  GENERAL 

Governments  are  supposed  to  be  representative,  nations 
are  supposed  to  be  responsible  for  their  Governments, 
and  wars  have  therefore  become  wars  between  all  the 
individuals  of  the  warring  nations. 

(4)  The  enormous  development  of  international  means 
of  commmiication  for  commerce  and  industry.  To  put 
economic  pressure  upon  the  enemy  has  always  been 
legitimate ;  but,  whereas  in  previous  wars  it  only 
played  a  secondary  part,  during  the  World  War  it 
became  of  primary  importance.  The  consequence  is 
that,  although  war  still  is  in  the  main  a  contention 
between  States  by  their  armed  forces,  the  civihan  popu- 
lation nowadays  is  exposed  to  extreme  suffering  in 
health  and  property. 
War  a  §  58.  The  last,  and  not  the  least  important,  charac- 

tion  ^       teristic  of  war  is  its  purpose.    It  is  a  contention  between 
stltelTor  S*^*6S  for  the  purpose  of   overpowering  each  other, 
the  pur-    This  puTposc  of  War  is  not  to  be  confounded  wdth  the 
over-        ends  ^  of  war,  for,  whatever  the  ends  of  war  may  be, 
eacT""^  they  can  only  be  reahsed  by  one  belligerent  overpower- 
other,       ing  the  other.     Such  a  defeat  as  compels  the  van- 
quished to  comply  with  any  demand  the  victor  may 
choose  to  make  is  the  purpose  of  war.     Therefore  war 
calls  into  existence  the  display  of  the  greatest  possible 
power  and  force  on  the  part  of  the  beUigerents,  rouses 
the  passion  of  the  nations  in  conflict  to  the  highest 
possible  degree,  and  endangers  the  w^elfare,  the  honom', 
and  eventually  the  very  existence  of  both  belhgerents. 
Nobody  can  predict  with  certainty   the  result  of    a 
war,  however  insignificant  one  side  may  seem  to  be. 
Every   war  is   a  risk   and   a   venture.      Every   State 
which    goes    to   war    knows    beforehand    what   is   at 
stake ;    and  it  would  never  go  to  war  were  it  not  for 
its  fii*m,  though  very  often  illusory,  conviction  of  its 
superiority  in  strength  over  its  opponent.     Victory  is 

^  See  below,  §  66. 


CHARACTERISTICS   OF   WAR  75 

necessary  in  order  to  overpower  the  enemy  ;  and  it 
is  this  necessity  which  justifies  all  the  indescribable 
horrors  of  war,  the  enormous  sacrifice  of  human  life 
and  health,  and  the  unavoidable  destruction  of  pro- 
perty and  devastation  of  territory.  Apart  from  restric- 
tions imposed  by  the  Law  of  Nations  upon  belhgerents, 
all  kinds  and  all  degrees  of  force  may  be,  and  eventually 
must  be,  used  in  war,  in  order  that  its  purpose  may  be 
achieved,  in  spite  of  their  cruelty  ^  and  the  utter  misery 
they  entail.  As  war  is  a  struggle  for  existence  between 
States,  no  amount  of  individual  suffering  and  misery 
can  be  regarded  ;  the  national  existence  and  independ- 
ence of  the  strugghng  State  is  a  higher  consideration 
than  any  individual  well-being. 

§59.  These  characteristics  of  war  must  help  tociviiwar. 
decide  whether  so-called  civil  wars  are  war  in  the 
technical  meaning  of  the  term.  It  has  already  been 
stated  -  that  an  armed  contention  between  a  Federal 
State  and  its  member-States,  or  between  a  suzerain  and 
its  vassal,  ought  to  be  considered  as  war  because  both 
parties  are  real  States,  although  the  Federal  State  and 
the  suzerain  may  correctly  designate  it  as  rebellion. 
Such  armed  contentions  may  be  called  civil  wars  in  a 
wider  sense  of  the  term.  In  the  proper  sense  of  the 
term  a  civil  war  exists  when  two  opposing  parties  \^^tllin 
a  State  have  recourse  to  arms  for  the  purpose  of  obtain- 
ing power  in  the  State,  or  when  a  large  portion  of  the 
population  of  a  State  rises  in  arms  against  the  legitimate 
Government.  As  war  is  an  armed  contention  between 
States,  such  a  civil  war  need  not  be  war  from  the  begin- 
ning, nor  become  war  at  all,  in  the  technical  sense  of  the 
term.  But  it  may  become  war  through  the  recognition 
of  each  of  the  contending  parties,  or  of  the  insurgents, 

*  To  avoid  misunderstanding,  at-       concerning  the  Laws  and  Customs 
tention  should  be  drawn  to  the  pre-        of  \Var  on  Land. 
amble   of    Hague   Convention    (iv. )  *  See  above,  §  56. 


76  ON  WAR  IN  GENERAL 

as  a  belligerent  Power.^  Through  this  recognition  a 
body  of  individuals  receives  an  international  position, 
in  so  far  as  it  is  for  some  parts,  and  in  some  points,  treated 
as  though  it  were  a  subject  ^  of  International  Law. 
Such  recognition  may  be  granted  by  the  State  within 
the  boimdaries  of  which  the  civil  war  broke  out,  and 
then  other  States  will  in  most  cases,  although  they  need 
not,  likewise  recognise  a  state  of  war  as  existing  and 
bear  the  duties  of  neutraUty.  But  it  may  happen  that 
other  States  recognise  insurgents  as  a  belHgerent  Power 
before  the  State  on  whose  territory  the  insurrection 
broke  out  so  recognises  them.  In  such  a  case  the  in- 
surrection is  war  in  the  eyes  of  these  other  States,  but 
not  in  the  eyes  of  the  legitimate  Government.^  Be  that 
as  it  may,  although  a  civil  war  becomes  war  in  the  tech- 
nical sense  of  the  term  by  recognition,  this  recognition 
has  a  lasting  effect  only  when  the  insurgents  succeed 
in  getting  their  independence  estabhshed  through  the 
defeat  of  the  legitimate  Government  and  a  consequent 
treaty  of  peace  which  recognises  their  independence.. 
Moreover,  nothing  prevents  the  State  concerned,  after 
the  defeat  of  the  insurgents  and  reconquest  of  the 
territory  which  they  had  occupied,  from  treating  them 
as  rebels  according  to  the  Criminal  Law  of  the  land,  for 
the  character  of  a  belligerent  Power  received  through 
recognition  is  lost  ifso  facto  by  their  defeat  and  the  re- 
occupation  of  the  territory  by  the  legitimate  Government. 
Guerilla  §  60.  The  characteristics  of  war  also  determine 
^^^""'  whether  so-called  guerilla  war  is  real  war  in  the 
technical  sense  of  the  term. 

Guerilla  war  must  not  be  confounded  with  guerilla 
tactics  during  a  war.  During  war  commanders  send 
small  bodies  of  soldiers  wearing  uniform  to  the  rear 
of   the  enemy  for  the  purpose  of  destroying  bridges 

1  See  below,  ?S  76,  298.  '  «ee  below,  §  298.      . 

*  See  above,  vol.  i.  §  63. 


CHARACTERISTICS   OF   WAR  77 

and  milways,  cutting  off  communications  and  supplies, 
attacking  convoys,  intercepting  despatches,  and  the 
like.  This  is  in  every  way  legal,  and  these  parties,  when 
captured,  enjoy  the  treatment  due  to  enemy  soldiers. 
Or  again,  private  individuals  take  up  arms,  and  devote 
themselves  mainly  to  similar  tactics.  According  to 
the  former  rules  of  International  Law  such  individuals, 
when  captured,  under  no  condition  enjoyed  the  treat- 
ment due  to  enemy  soldiers,  but  could  be  treated  as 
criminals  and  punished  with  death.  However,  accord- 
ing to  Article  1  of  the  Regulations  concerning  War  on 
Land  adopted  by  the  Hague  Conferences  of  1899  and 
1907,  such  guerilla  fighters  enjoy  the  treatment  of  soldiers 
provided  that  they  (1)  do  not  act  individually,  but  form 
a  body  commanded  by  a  person  responsible  for  his  sub- 
ordinates, (2)  have  a  fixed  distinctive  emblem  recognis- 
able at  a  distance,  (3)  carry  arms  openly,  and  (4)  conduct 
their  operations  in  accordance  with  the  laws  of  war.^ 

On  the  other  hand,  one  speaks  of  guerilla  war  or 
petty  war  when,  after  the  defeat  and  the  capture  of  the 
main  part  of  the  enemy  forces,  the  occupation  of  the 
enemy  territory,  and  the  downfall  of  the  enemy  Govern- 
ment, the  routed  remnants  of  the  defeated  army  carry 
on  the  contention  by  mere  guerilla  tactics.  Although 
hopeless  of  success  in  the  end,  such  petty  war  can  go 
on  for  a  long  time,  thus  preventing  the  estabhshment 
of  a  state  of  peace,  in  spite  of  the  fact  that  regular 
war  is  over  and  the  task  of  the  army  of  occupation  is 
no  longer  regular  warfare.  Now  the  question  whether 
such  guerilla  war  is  real  war  in  the  strict  sense  of  the 
term  in  International  Law  must,  I  think,  be  answered  in 
the  negative,  for  two  reasons.  First,  there  are  no  longer 
the  forces  of  two  States  in  the  field,  because  the  defeated 
belhgerent  State  has  ceased  to  exist  through  the  mihtary 
occupation  of  its  territory,  the  downfall  of  its  estab- 

^  See  also  Article  2  of  the  Hague  Regulations. 


78  ON  WAR   IN   GENERAL 

lished  Government,  the  capture  of  the  main  part  and 
the  routing  of  the  remnant  of  its  forces.  And,  secondly, 
there  is  no  longer  in  progress  a  contention  between 
armed  forces.  For  although  the  guerilla  bands  are 
still  fighting  when  attacked,  or  when  attacking  small 
bodies  of  enemy  soldiers,  they  try  to  avoid  a  pitched 
battle,  and  content  themselves  with  constantly  harass- 
ing the  victorious  army,  destroying  bridges  and  rail- 
ways, cutting  off  communications  and  supphes,  attacking 
convoys,  and  the  hke,  always  in  the  hope  that  some 
event  may  occur  which  will  induce  the  victorious  army 
to  withdraw.  If,  then,  guerilla  war  is  not  real  war,  it  is 
obvious  that  in  strict  law  the  victor  need  no  longer 
treat  the  guerilla  bands  as  a  belHgerent  Power,  and  their 
captured  members  as  soldiers.  It  is,  however,  advisable 
that  he  should  do  so,  as  long  as  they  are  under  respon- 
sible commanders  and  observe  the  laws  and  usages  of 
war.  For  I  can  see  no  advantage  or  reason  why, 
although  in  strict  law  it  could  be  done,  those  bands 
should  be  treated  as  criminals.  Such  treatment  would 
only  call  for  acts  of  revenge  on  their  part,  without  in 
the  least  accelerating  the  pacification  of  the  country. 
And  it  is,  after  all,  to  be  taken  into  consideration  that 
those  bands  act,  not  out  of  criminal,  but  patriotic 
motives.  With  patience  and  firmness,  the  victor  will 
succeed  in  pacifying  them  without  recourse  to  methods 
of  harshness.  , 

II 

CAUSES,   KINDS,   AND   ENDS   OF  WAR 

Grotius,  i.  c.  3 ;  ii.  c.  1,  c.  22  and  c.  23  ;  iii.  c.  3 — Pufendorf,  viii.  o.  6,  §  9 
— Vattel,  iii.  §§  2,  5,  24-50,  183-187— Lorimer,  ii.  pp.  29-49— Phillimore, 
iii.  §§  33-48— Twiss,  ii.  §§  26-30— Halleck,  i.  pp.  488-520— Taylor,  §§  452- 
454— Wheaton,  §§  295-296— Hershey,  Noa.  329-336— Bluntschli,  §§  515- 
520— Heffter,  §  113— Lueder  in  Holtzendorff,  iv.  pp.  221-236— Kliiber, 
§§  41,  235,  237— G.  F.  Martens,  §§  265-266— Ullmann,  §  166— Bonfils, 


CAUSES,    KINDS,    AND    ENDS   OF   WAR  79 

No8.  1002-1005— Despagnet,  No.  500— Pradier-Fod^r6,  vi.  Nos.  2601- 
2G70— Rivier,  ii.  p.  219— Nys,  iii.  pp.  13-23— Calvo,  iv.  §§  186(5-1890— 
Fichte,  Ueher  den  Begriff  dea  wahrkaflen  Krieges  (1815) — Rettich,  Znr 
Theorie  und  Geschichte  de»  Kechts  zum  Kriege  (1888),  pp.  141-291 — Pey- 
ronnard,  Des  Causes  de  la  Ouerre  (1901). 

§  61.  Whatever  may  be  the  cause  of  a  war  that  has  Rules  of 
broken  out,  and  whether  or  no  the  cause  be  a  so-called  indepelT- 
iust  cause,  the  same  rules  of  International  Law  are^^"^*^^  , 

J       _  '  Causes  of 

vahd  as  to  what  must  not  be  done,  may  be  done,  and  War. 
must  be  done  by  the  belligerents  themselves  in  making 
war  against  each  other,  and  as  between  the  belligerents 
and  neutral  States.  This  is  so,  even  if  the  declaration 
of  war  is  ipso  facto  a  violation  of  International  Law, 
as  when  a  belligerent  declares  war  upon  a  neutral 
State  for  refusing  passage  to  its  troops.  To  say  ^  that, 
because  such  a  declaration  of  war  is  ipso  facto  a  viola- 
tion of  neutrahty  and  International  Law,  it  is  '  inopera- 
tive in  law  and  without  any  juridical  significance  '  is 
erroneous.  The  rules  of  International  Law  apply  to 
war  from  whatever  cause  it  originates.  This  being  the 
case,  the  question  as  to  the  causes  of  war  is  of  minor 
importance  for  the  Law  of  Nations,  although  not  for 
international  ethics.  The  matter  need  not  be  discussed 
at  all  in  a  treatise  on  International  Law,  were  it  not  that 
many  writers  maintain  that  there  are  rules  of  Inter- 
national Law  which  determine  and  define  just  causes 
of  war.  It  must  be  emphasised  that  this  is  by  no  means 
the  case.  All  such  rules  laid  down  by  writers  on  Inter- 
national Law  as  recognise  certain  causes  as  just  and 
others  as  unjust  are  rules  of  writers,  but  not  rules  of 
International  Law  based  on  international  custom  or 
international  treaties. 

§  62.  The    causes   of   war   are   innumerable.     They  Causes  of 
are  involved  in  the  fact  that  the  development  of  man-     *^' 
kind  is  indissolubly  connected  with  the  national  develop- 

^  See  Visacher  in  the  Grotius  Society,  ii.   p.   101,  and  in  Belgium's  Cote 
(1916),  p.  148. 


80  ON  WAR  IN  GENERAL 

ment  of  States.  The  millions  of  indi\nduals  who  as  a 
body  are  called  mankind  do  not  face  one  another 
individually  and  severally,  but  in  groups  as  races, 
nations,  and  States.  With  the  welfare  of  the  races, 
nations,  and  States  to  which  they  belong  the  welfare 
of  individuals  is  more  or  less  identified ;  and  it  is  the 
development  of  races,  nations,  and  States  that  carries 
with  it  the  causes  of  war.  A  constant  increase  of 
population  must  in  the  end  force  upon  a  State  the 
necessity  of  acquiring  more  territory,  and  if  it  cannot 
be  acquired  by  peaceable  means,  acquisition  by  con- 
quest alone  remains.  At  certain  periods  of  history,  the 
principle  of  nationahty,  and  the  desire  for  national 
unity,  gain  such  a  power  over  the  hearts  and  minds  of 
the  individuals  belonging  to  the  same  race  or  nation, 
but  Hving  within  the  boundaries  of  several  different 
States,  that  wars  break  out  for  the  cause  of  national 
unity  and  independence.  And  jealous  rivalry  between 
two  or  more  States,  the  awakening  of  national  ambition, 
the  craving  for  rich  colonies,  the  desire  of  a  land-locked 
State  for  a  sea-coast,  the  endeavour  of  a  hitherto  minor 
State  to  become  a  world-Power,  the  ambition  of  dynasties 
or  of  great  pohticians  to  extend  and  enlarge  their  in- 
fluence beyond  the  boundaries  of  their  own  States,  and 
innumerable  other  factors,  have  been  at  work,  ever 
since  history  was  first  recorded,  in  creating  causes  of 
war,  and  likewise  play  their  part  in  our  own  times. 
Although  one  must  hope  that  the  time  will  come  when 
war  will  entirely  disappear,  there  is  no  possibility  of 
seeing  this  hope  reahsed  in  the  near  future.  The  first 
necessities  for  the  disappearance  of  war  are  that  the 
surface  of  the  earth  should  be  shared  between  States  of 
the  same  standard  of  civilisation,  and  that  the  moral 
ideas  of  the  governing  classes  in  all  the  States  of  the 
world  should  undergo  such  alteration  and  progressive 
development    as    would    create    the    conviction    that 


CAUSES,   KINDS,    AND   ENDS   OF  WAR  81 

decisions  of  Internatioual  Courts  of  Justice,  and  awards 
of  arbitrators,  are  alone  adequate  means  for  the  settle- 
ment of  international  disputes  and  international  political 
aims.  So  long  as  these  first  necessities  are  not  reahsed, 
war  will,  as  heretofore,  remain  the  ultima  ratio  of  inter- 
national pohtics,  although  the  causes  of  war  can  be 
diminished  by  efiective  machinery  for  settling  inter- 
national differences  without  recourse  to  hostihties.^ 

§  63.  However  this  may  be,  it  often  depends  largely  Just 
upon  the  standpoint  from  which  they  are  viewed  wan  ^ " 
whether  or  no  causes  of  war  are  to  be  called  just  causes.  "^ 
A  war  may  be  just  or  unjust  from  the  standpoint  of  L 
both  belligerents,  or  just  from  the  standpoint  of  one, 
and  utterly  unjust  from  the  standpoint  of  the  other. 
The  assertion  that  whereas  all  wars  waged  for  political 
causes  are  unjust,  all  wars  waged  for  international 
delinquencies  are  just,  if  there  be  no  other  way  of 
getting  reparation  and  satisfaction,  is  certainly  incorrect, 
because  too  sweeping.  The  evils  of  war  are  so  great 
that,  even  when  caused  by  an  international  dehnquency,^ 
it  cannot  be  justified  if  the  dehnquency  be  compara- 
tively unimportant  and  trifling.  On  the  other  hand, 
under  certain  circumstances  and  conditions,  many 
pohtical  causes  of  war  may  correctly  be  called  just 
causes.  Only  such  individuals  as  lack  insight  into 
history  and  human  nature  can,  for  instance,  defend  the 
opinion  that  a  war  is  unjust  which  has  been  caused 
by  the  desire  for  national  unity,  or  by  the  desire  to 
maintain  the  balance  of  powder,  which  under  the  present 
conditions  and  circumstances  is  the  basis  of  all  Inter- 
national Law.  Necessity  for  a  war  impHes  its  justifica- 
tion, whatever  may  be  the  cause.  In  the  past  many 
wars  have  undoubtedly  been  waged  which  were  unjust, 

^  Such   as   the   Covenant    of    the  consider    this,    and    the    following, 

League  of  Nations  has  endeavoured  section,  in  view  of  the  establishment 

to  set  up.      See  above,   §§  25b-2og.  of  the  League. 

The    author    had    intended    to    re-  '  See  above,  vol.  i.  §§  151-156. 

VOL.    II.  F 


82  ON  WAR  IN  GENERAL 

from  whatever  standpoint  they  may  be  viewed.     Yet 
the  number  of  wars  diminishes  gradually  every  year, 
and  the  majority  of  the  European  wars  since  the  down- 
fall of  Napoleon  i.  were  wars  that  were,  from  the  stand- 
point of,  at  any  rate,  one  of  the  belligerents,  necessary, 
and  therefore  just  wars. 
Causes  in      §  64.  Causcs  of  war  must  not  be  confounded  with 
tSon'^  pretexts  for  war.    A  State  which  makes  war  against 
^"  ^^;     another  will  never  confess  that  there  is  no  just  cause 

texts  for  1    •  -n      1  r  ^  •      i  ^ 

War.  for  war,  and  it  will  thereiore,  when  it  has  made  up  its 
mind  to  make  war  for  political  reasons,  always  look  out 
for  a  so-called  just  cause.  Thus  frequently  the  apparent 
reason  of  a  war  is  only  a  pretext,  behind  which  the  real 
cause  is  concealed.  If  two  States  are  convinced  that 
war  between  them  is  inevitable,  and  if,  consequently, 
they  face  each  other  armed  to  the  teeth,  they  will  find 
at  the  suitable  time  many  a  so-called  just  cause  plausible 
and  calculated  to  serve  as  a  pretext  for  the  outbreak  of 
a  war  which  was  planned  and  resolved  upon  long  ago. 
History  teaches  that  the  skill  of  poHtics  and  diplomacy 
have  nowhere  been  more  needed  than  when  a  State  was 
convinced  that  it  must  go  to  war  for  one  reason  or  another. 
Public  opinion  at  home  and  abroad  was  often  not  ripe 
to  appreciate  the  reason  and  not  prepared  for  the  scheme 
of  the  leading  politicians,  whose  task  it  was  to  reahse 
their  plans  with  the  aid  of  pretexts  which  appeared  as 
the  cause  of  war,  whereas  the  real  cause  did  not  become 
apparent  for  some  time.^ 
rHfferent  §  65.  Writers  on  International  Law  who  lay  great 
wT?  ^^  stress  upon  the  causes  of  war  in  general,  and  upon  the 
distinction  between  just  causes  and  others,  also  lay 
great  stress  upon  the  distinction  between  difierent 
kinds  of  war.     But  as  the  rules  of  the  Law  of  Nations 

^  The  author  hoped  that  the  pro-  the  League  of  Nations,  would  prevent 
gress  of  democracy  and  constitutional  wars  being  embarked  upon  under  pre- 
govemment,  and  the  establishment  of       texts. 


CAUSES,   KINDS,    AND   ENDS  OF  WAR  83 

are  the  same  ^  for  the  different  kinds  of  war  that  may- 
be distinguished,  this  distinction  is  in  most  cases  of  no 
importance.  Apart  from  that,  there  is  no  unanimity 
respecting  the  kinds  of  war,  and  it  is  apparent  that,  just 
as  the  causes  of  war  are  innumerable,  so  innumerable 
kinds  of  war  can  be  distinguished.  Thus  one  speaks  of 
offensive  and  defensive,  or  rehgious,  political,  dynastic, 
national,  civil  wars  ;  of  wars  of  unity,  independence, 
conquest,  intervention,  revenge,  and  of  many  other 
kinds.  As  the  very  name  which  each  different  kind 
of  war  bears  always  explains  its  character,  no  further 
details  are  necessary  respecting  kinds  of  war. 

§  66.  The  cause,  or  causes,  of  a  war  determine  at  its  Ends  of 
inception  the  ends  of  that  war.  The  ends  of  w^ar  must 
not  be  confounded  with  the  purpose  of  war.^  Whereas 
the  purpose  is  always  the  same — namely,  the  over- 
powering and  utter  defeat  of  the  opponent — the  ends 
may  be  different  in  each  case.  Ends  of  war  are  those 
objects  for  the  reahsation  of  which  a  war  is  made.^ 
In  the  beginning  of  the  war  its  ends  are  determined  by 
its  cause  or  causes,  as  already  said.  But  they  may 
undergo  alteration,  or  at  least  modification,  with  its 
progress  and  development.  No  moral  or  legal  duty 
exists  for  a  belligerent  to  stop  the  war  when  his  opponent 
is  ready  to  concede  the  object  for  which  war  was  made. 
If  war  has  once  broken  out,  the  very  national  existence 
of  the  belhgerents  is  more  or  less  at  stake.  The  risk 
the  belhgerents  run,  the  exertion  they  make,  the  blood 
and  wealth  they  sacrifice,  the  reputation  they  gain  or 
lose  through  the  changing  fortune  and  chances  of  war 
— all  these  and  many  other  factors  work,  or  may  work, 
together  to  influence  the  ends  of  a  war,  so  that  even- 
tually there  is  scarcely  any  longer  a  relation  between 

*  See  above,  §  61.  '  See  Bluntschli,  §  536 ;  Lueder  in 

*  Ends  of  war  must  likewise  not        Holtze-ndorff,   iv.   p.   364  ;  Rivier,  ii. 
be  confounded  -with  aims  of  land  and        p.  219. 

sea  warfare  ;  see  below,  §§  103,  137. 


84  ON  WAR  IN  GENERAL 

them  and  the  causes  of  the  war.  If  war  really  were, 
as  some  writers  maintain/  the  legal  remedy  of  self- 
help  to  obtain  satisfaction  for  a  wrong  sustained  from 
another  State,  no  such  alteration  of  the  ends  of  war 
could  take  place  without  at  once  setting  in  the  wrong  a 
belligerent  which  changed  the  ends  for  which  the  war 
was  initiated.  But  history  shows  that  nothing  of  the 
kind  is  really  the  case  ;  and  the  existing  rules  of  Inter- 
national Law  by  no  means  forbid  such  alteration  or 
modification  of  the  ends  of  a  war,  which  is  the  result  of 
an  alteration  or  modification  of  circumstances  created 
during  the  progress  of  war,  through  the  factors  pre- 
viously mentioned.  It  could  not  be  otherwise,  and 
there  is  no  moral,  legal,  or  political  reason  why  it  should 
be.  And  the  natural  jealousy  between  the  members 
of  the  Family  of  Nations,  their  conflicting  interests  in 
many  points,  and  the  necessity  of  a  balance  of  power, 
are  factors  of  sufficient  strength  to  check  the  political 
dangers  which  such  alteration  of  the  ends  of  a  war  may 
eventually  involve. 

Ill 

THE   LAWS   OF   WAR 

Hall,  §  17— Westlake,  ii.  pp.  56-63,  and  Papers,  pp.  237-241— Maine,  pp. 
123-159— Phillimore,  iii.  §  50— Taylor,  §  470— Hershey,  No.  336— 
Walker,  History,  i.  §§  106-108— Heffter,  g  119— Lueder  in  Holtzendorff, 
iv.  pp.  253-332— Ullmann,  §§  167,  170— Bonfils,  Nos.  1006-1013— 
Despagnet,  Nos.  508-510  —  Pradier-Fod6r6,  viii.  Nos.  3212-3213  — 
M^rignhac,  iii".  pp.  19-44 — Rivier,  ii.  pp.  238-242 — Nys,  iii.  pp.  91-96 — 
Calvo,  iv.  §§  1897-1898— Fiore,  iii.  Nos.  1244-1260— Martens,  ii.  §  107— 
Longuet,  p.  12— Bordwell,  pp.  100-193— Spaight,  pp.  1-19— Garner,  i. 
§§  1-24 — Kriegshrauch,  p.  2 — Land  Warfare,  §§  1-7 — Holland,  Studies, 
pp.  40-96 — Lammasch,  Das  Volkerrecht  nach  deni  Kriege  (1917),  pp. 
3-25 — Jerusalem,  Kriegsrecht  und  Kodification  (1918). 

§  67.  Laws  of  war  are  the  rules  of  the  Law  of  Nations 
respecting  warfare.    The  roots  of  the  present  laws  of 

^  See  above,  §  54. 


THE    LAWS   OF   WAR  85 

war  are  to  be  traced  back  to  practices  of  belligerents  Origin  of 
which  arose,  and  grew  gradually,  during  the  latter  part  of  wlV!^^ 
of  the  Middle  Ages.  The  unsparing  cruelty  of  the  war 
practices  dui'ing  the  greater  part  of  the  Middle  Ages 
began  gradually  to  be  modified  through  the  influence 
of  Christianity  and  chivalry ;  and  although  these 
practices  were  cruel  enough  during  the  fifteenth,  six- 
teenth, and  seventeenth  centuries,  they  were  mild  com- 
pared with  those  of  still  earlier  times.  Decided  progress 
was  made  during  the  eighteenth  century,  and  again 
after  the  close  of  the  Napoleonic  wars,  especially  in  the 
years  from  1850  to  the  outbreak  of  the  World  War. 
The  laws  of  war  evolved  in  this  way  :  isolated  milder 
practices  by  and  by  became  usages,  so-called  usus  in 
hello,  manner  of  warfare,  Kriegs-Manier,  and  these 
usages  through  custom  and  treaties  turned  into  legal 
rules.  And  this  evolution  is  constantly  going  on,  for, 
besides  the  recognised  laws  of  war,  there  are  usages  in 
existence,  which  have  a  tendency  to  become  gradually 
legal  rules  of  warfare.  The  whole  growth  of  the  laws 
and  usages  of  war  is  determined  by  three  principles. 
There  is,  first,  the  principle  that  a  belligerent  should  be 
justified  in  applying  any  amount  and  any  kind  of  force  ^ 

which  is  necessary  for  the  reahsation  of  the  purpose  of  (_ 

war — namely,  the  overpowering  of  the  opponent.  There 
is,  secondly,  the  principle  of  humanity  at  work,  which 
says  that  all  such  kinds  and  degrees  of  violence  as  are 
not  necessary  for  the  overpowering  of  the  opponent 
should  not  be  permitted  to  a  belhgerent.  And,  thirdly 
and  lastly,  there  is  at  work  the  principle  of  chivalry, 
which  arose  in  the  Middle  Ages,  and  introduced  a  certain 
amount  of  fairness  in  offence  and  defence,  and  a  certain 
mutual  respect.  And,  in  contradistinction  to  the 
savage  cruelty  of  former  times,  belligerents  in  the  era 
preceding  the  World  War  reached  the  conviction  that 
the  reahsation  of  the  purpose  of  war  was  in  no  way 


86  ON  WAR  IN  GENERAL 

hampered  by  indulgence  shown  to  the  wounded,  to 
prisoners,  and  to  private  individuals  who  do  not  take 
part  in  the  fighting.  Thus  the  influence  of  the  prin- 
ciple of  humanity  has  been  enormous  upon  the  practice 
of  warfare,  and  its  methods,  although  by  the  nature 
of  war  to  a  certain  degree  cruel  and  unsparing,  became 
less  cruel  and  more  humane.  But  the  evolution  of  the 
laws  and  usages  of  war  could  not  have  taken  place  at 
all,  but  for  the  institution  of  standing  armies,  which 
dates  from  the  fifteenth  century.  The  humanising  of 
the  practices  of  war  would  have  been  impossible  without 
the  disciphne  of  standing  armies ;  and  without  them 
the  important  distinction  between  members  of  armed 
forces  ^  and  private  individuals  could  not  have 
arisen. 

But  there  is  no  doubt — the  World  War  has  made  it 

obvious — that  this  distinction,  and  also  the  moderating 

influences  of  chivalry  and   humanity,  again  threaten 

to    disappear.     Conscription,    with    its    consequences 

that  wars  are  fought  by  whole  nations  in  arms,  and 

war  passions  infect  all  belligerent  subjects,  threatens 

to  overthrow  the  barriers  against  excesses  which  the 

professional  soldiery  of  the  eighteenth  and  nineteenth 

centuries,  and  the  Hague  Peace  Conferences  of  1899  and 

1907,  attempted  to  erect. 

The  most      §  68.  The  most  important  developments  of  the  laws 

iSveiop^^  of  war  took  place  through  the  following  general  trea- 

ment3of    ties  concludcd   between  the  maiority  of   States  after 

the  Laws  J  -^ 

of  War.      1850  : — 

(1)  The  Declaration  of  Paris  of  April  16, 1856,  respect- 
ing warfare  on  sea.  It  abolished  privateering,  recog- 
nised the  principles  that  the  neutral  flag  covers  enemy 
goods,  and  that  neutral  goods  under  an  enemy  flag 
cannot  be  seized,  and  enacted  the  rule  that  a  blockade 
in  order  to  be  binding,  must  be  effective.     The  declara- 

^  See  above,  §  57. 


THE    LAWS    OF    WAR  87 

tion  was  signed  by  seven  States,  but  almost  all  other 
maritime  Powers  acceded  in  course  of  time.^ 

(2)  The  Geneva  Convention  of  August  22,  1864,  for 
the  amelioration  of  the  condition  of  wounded  soldiers 
in  armies  in  the  field,  which  was  originally  signed  by 
only  nine  States,  but  to  which  in  course  of  time  almost 
all  the  civihsed  States  acceded.  A  treaty  containing  a 
number  of  additional  articles  to  the  convention  was 
signed  at  Geneva  on  October  20,  1868,  but  was  never 
ratified.  A  new  Geneva  Convention  was  signed  on 
July  6,  1906,  by  thirty-five  States,  and  several  others 
acceded.  Its  principles  were  adapted  to  maritime 
warfare  by  conventions  ^  of  the  First  and  Second  Hague 
Peace  Conferences. 

(3)  The  Declaration  of  St.  Petersburg  of  December 
11,  1868,  respecting  the  prohibition  of  the  use  in  war 
of  projectiles  under  400  grammes  (14  ounces)  which  are 
either  explosive,  or  charged  with  inflammable  sub- 
stances.    It  was  signed  by  seventeen  States. 

(4)  The  convention  enacting  regulations  respecting 
the  Laws  of  War  on  Land  agreed  upon  at  the  First  Peace 
Conference  of  1899. 

The  history  of  this  convention  may  be  traced  back 
to  the  Instructions  for  the  Government  of  Annies  of  the 
United  States  in  the  Field  which  the  United  States 
pubhshed  on  April  24,  1863,  during  the  War  of  Seces- 
sion. These  instructions,  which  were  drafted  by  Pro- 
fessor Francis  Lieber,^  of  the  Columbia  College  of  New 
York,  represented  the  first  endeavour  to  codify  the 
laws  of  war,  and  they  are  even  nowadays  of  great  value 
and  importance.  In  1874  an  international  conference, 
invited  by  the  Emperor  Alexander  ii.  of  Russia,  met 
at  Brussels  to  discuss  a  draft  code  of  the  Laws  of  War 


^  See    above,    vol.    i.    §   47,    and  '  See  Root  in  A. J.,   vii.    (1913), 

Garner,  i.  §  11.  pp.  4o3-4t;9. 

*  See  below,  §  204. 


88  ON  WAR  IN  GENERAL 

on  Land  prepared  by  Russia.  The  body  of  the  articles 
agreed  upon  at  this  conference,  and  known  as  the 
'  Brussels  Declarations/  have,  however,  never  become 
law,  as  ratification  was  never  given  by  the  Powers. 
But  they  were  made  the  basis  of  deliberations  on  the 
part  of  the  Institute  of  International  Law,  which  at 
its  meeting  at  Oxford  in  1880  adopted  a  Manual  ^  of 
the  Laws  of  War  consisting  of  a  body  of  eighty-six  rules 
under  the  title,  Les  Lois  de  la  Guerre  sur  Terre,  and  a 
copy  of  this  draft  code  was  sent  to  all  the  Governments 
of  Europe  and  America.  It  was,  however,  not  until  the 
Hague  Peace  Conference  of  1899  that  the  Powers  re- 
assembled to  discuss  again  the  codification  of  the  laws 
of  war.  At  this  conference  the  Brussels  Declarations 
were  taken  as  the  basis  of  the  deliberations ;  but 
although  the  bulk  of  its  articles  were  taken  over,  several 
important  modifications  were  introduced  in  the  con- 
vention, which  was  finally  agreed  upon  and  ratified, 
only  a  few  Powers  abstaining  from  ratification. 

The  Second  Peace  Conference  of  1907  revised  this 
convention,  and  its  place  is  now  taken  by  Convention 
IV.  of  the  Second  Peace  Conference.  Convention  iv.,^ 
as  the  preamble  expressly  states,  does  not  aim  at  giving 

^  See  Annuaire,  v.  pp.  157-174.  Army,  WTitten  by  order  of  the  Secre- 

*  For  brevity  Convention  iv.   will  tary  of  State  for  War  by  Colonel 

be  referred  to  in  the  following  pages  Edmonds  and  Professor  Oppenheim. 

as   the   Hague   Regulations.      These  In    it   the    Hague    Regulations  are 

Regulations,  although  they  are  in-  systematically  set  out,  and  their  full 

t«nded  to  be  binding  upon  the  bel-  text  is  published  in  an  Appendix, 

ligerents,    are  only  the  basis  upon  This  guide  was  in  1914  embodied  in 

which  the  signatory  Powers  have  to  a  new  edition  of  the  official  Manual 

frame  instructions  for  their  forces.  of  Military  Law.     The  British  War 

Article  1  declares  :   '  The  High  Con-  Office  had  already  in  1903  published 

tracting  Parties  shall  issue  instruc-  a  manual,   drafted  with  great  pre- 

tions   to   their   armed    land   forces,  cision   and    clearness    by   Professor 

which  shall  be  in  conformity  with  Holland,  for  the  information  of  the 

the  Regulations  respecting  the  Laws  British  forces,  comprising  '  The  Laws 

and  Customs  of    War  on  Land   an-  and  Customs  of  War  on  Land,   as 

nexed   to  the  present  Convention.'  defined   by   the    Hague   Convention 

The  British  War  Office,  therefore,  of    1899.'      See   also   Holland,    The 

published    in    1912    a  guide.    Land  Laws  of  War  on  Land  (  Written  and 

Warfare:  an  Exposition  of  the  Laws  Unioritten)  (1908).     Germany  had  in 

and  Usage*  of  War  on  Land  for  the  1902  issued  forthe  guidance  of  officers 

Ouidan/xof  Officers  of  Hit  Majesty's  Kriegsbrauch   im  Landkriege.      Be- 


THE   LAWS   OF  WAR  89 

a  complete  code  of  the  laws  of  war  on  land,  and  cases 
beyond  its  scope  still  remain  the  subject  of  customary 
rules  and  usages.  Further,  it  does  not  create  universal 
International  Law,  as  Article  2  of  the  convention  ex- 
pressly stipulates  that  the  Regulations  shall  be  binding 
upon  the  contracting  Powers  only  in  case  of  war  between 
two  or  more  of  them,  and  shall  cease  to  be  binding  in 
case  a  non-contracting  Power  takes  part  in  the  war. 
But,  in  spite  of  this  express  stipulation,  there  can  be 
no  doubt  that  in  time  the  Regulations  will  become 
universal  International  Law,  since  all  the  Powers 
represented  at  the  Second  Peace  Conference  signed  the 
convention  except  three,  although  some  States  made 
certain  reservations.^ 

(5)  The  declaration  concerning  expanding  (dumdum) 
bullets.  2 

(6)  The  declaration  concerning  projectiles  and  explo- 
sives launched  from  balloons.^ 

(7)  The  declaration  concerning  projectiles  diffusing 
asphyxiating  or  deleterious  gases.* 

(8)  The  convention  for  the  adaptation  to  sea  warfare 
of  the  principles  of  the  Geneva  Convention,  produced  by 
the  First  and  revised  by  the  Second  Peace  Conference.^ 

(9)  The  Hague  Convention  of  1907  concerning  the 
opening  of  hostihties.® 

(10)  The  Hague  Convention  of  1907  concerning  the 

fore   the    outbreak    of    the    World  which    had    been    so    ratified,    was 

War  many  other  States  had  issued  binding,  but  that  the  convention  of 

manuals:    e.g.  the  French  Les  Lois  1907  was  not  binding,  except  in  so 

de   la   Ouerre   CorUinentale   (4th  ed.  far  as  it  was  declaratory  of  existing 

1913),  and  the  United  States  Bides  customary  rules.     In  any  case,  it  is 

of  Land    Warfare  (1914).     See  de-  now  generally  felt  that  the  conven- 

tails  in  Garner,  i.  §§  3-6.  tion  of  1907  requires  revision  ;    but 

^  This  was   the  author's   opinion  Oppenheim  did  not  live  to  discuss 

before  the  World  War.     But  when  these  questions, 

it   came,   this    convention   had   not  2  ggg  below   §  112. 

been  ratified  by  all  the  belligerents,  3  ggg  below'  §  114* 

and  its  binding  force  was  controver-  .                    '  o  , ,  o' 

sial.     Garner,   i.    §§   16-18,   collects  ^ee  below,  §  113. 

the  material,  and  concludes  that  the  *  ^^ee  below,  §  204. 

corresponding   convention   of    1899,  *  See  below,  §  94. 


90  ON  WAR  IN  GENERAL 

status   of   enemy   merchantmen   at   the   outbreak   of 
hostihties.^ 

(11)  The  Hague  Convention  of  1907  concerning  the 
conversion  of  merchantmen  into  men-of-war.^ 

(12)  The  Hague  Convention  of  1907  concerning  the 
laying  of  automatic  submarine  contact  mines.  ^ 

(13)  The  Hague  Convention  of  1907  concerning  bom- 
bardment by  naval  forces  in  time  of  war.* 

(14)  The  Hague  Convention  of  1907  concerning  certain 
restrictions  on  the  exercise  of  the  right  of  capture  in 
maritime  war.^ 

(15)  The  two  Hague  Conventions  of  1907  ^  concerning 
the  rights  and  duties  of  neutral  Powers  and  persons  in 
land  warfare  and  in  sea  warfare.'^ 

Binding  §  69.  As  soou  as  usagcs  of  warfare  have  by  custom 
the^Laws  ^r  treaty  evolved  into  laws  of  war,  they  are  binding 
of  War.  upon  bclhgereuts  under  all  circumstances  and  con- 
ditions, except  in  the  case  of  reprisals  ^  as  retahation 
against  a  belhgerent  for  illegitimate  acts  of  warfare  by 
the  members  of  his  armed  forces  or  his  other  subjects. 
In  accordance  with  the  German  proverb,  Kriegsrae- 
S071  geht  vor  Kriegsmanier  {necessity  in  war  overrules  tlie 
tnanner  of  ivarfare),  many  German  authors  ^  before  the 

^  See  below,  §  102a.  *  See,    for    instance,    Lueder    in 

*  See  below,  §  84.  Holtzendorff,  iv.    pp.   254-257  ;   Ull- 

*  See  below,  §  182a.  mann,   §  170 ;  Meurer,  ii.  pp.   7-15. 

*  See  below,  §  21 S.  Liszt,  who  in  former  editions  agreed 
'•'  See  below,  §g  85,  186,  187,  191.  with    these    writers,    deserts    their 

*  See  below,  §  292.  ranks  in  the  sixth  edition  (§  24,  iv. 
'  A    declaration    concerning    the        3),  and  correctly  takes  the  other  side. 

Laws  of  Naval  War  was  signed  at  the  See  also  Nys,  iii.  p.  202  ;   Holland, 

Conference  of  London  on  February  War,   %  2,   where    the  older  litera- 

26,    1909,    by    Great   Britain,    Ger-  tiire  is  quoted  ;  Cybichowski,  5<udten 

many,  the  United  States  of  America,  zum  intemationalen  liecht  (1912),  pp. 

Austria  -  Hungarj',     Spain,     France,  21-71,  who  treats  the  subject  accur- 

Italj',  Japan,  Holland,  and  Russia.  atelj'  and  in  more  detail ;    Huber  in 

It  was  to  have  enacted  rules  con-  Z.V.,  vii.  (1913),  pp.  351-374,  whose 

cerning   blockade,    contraband,    un-  distinction    between    military    and 

neutralservice,  destruction  of  neutral  other    kinds    of    necessity    is    very 

prizes,  transfer  of  vessels  to  a  neutral  helpful;    Visscher   in    E.G.,    ixiv. 

flag,  enemy  character,  convoy,  and  (1917),  pp.  74-108,  who  discusses  the 

resistance  to  search,  but  failed  to  influence  of  necessity  on  the  laws  of 

secure  ratiflcation.     See'below,  §  292.  war   very   thoroughly;    Laramasch, 

'  See  below,  §  248.  op.    cit.,    pp.    20-23;    Schoen,    Die 


THE   LAWS   OF   WAR  91 

World  War  were  already  maintaining  that  the  laws  of 
war  lose  their  binding  force  in  case  of  extreme  necessity. 
Such  a  case  was  said  to  arise  when  violation  of  the  laws 
of  war  alone  offers,  either  a  means  of  escape  from  extreme 
danger,  or  the  realisation  of  the  purpose  of  war — namely, 
the  overpowering  of  the  opponent.  This  alleged  excep- 
tion to  the  binding  force  of  the  laws  of  war  was,  how- 
ever, not  at  all  generally  accepted  by  German  writers  ; 
for  instance,  Bluntschli  did  not  mention  it.  Enghsh, 
American,  French,  and  Italian  writers  did  not,  so  far 
as  I  am  aware,  aclaiowledge  it.  The  protest  of  West- 
lake  1  against  it  was  the  more  justified,  as  a  great  danger 
would  have  been  involved  in  its  admission. 

The  proverb  dates  very  far  back  in  the  history  of 
warfare.  It  originated  and  found  recognition  in  those 
times  when  warfare  was  not  regulated  by  laws  of  war, 
i.e.  generally  binding  customs  and  international  treaties, 
but  only  by  usages  {Manier,  i.e.  Brauch),  and  it  says 
that  necessity  in  war  overrules  usages  of  warfare.  In 
our  days,  however,  warfare  is  no  longer  regulated  by 
usages  only,  but  to  a  greater  extent  by  laws — firm 
rules  recognised,  either  by  international  treaties,  or  by 
general  custom.^  These  conventional  and  customary 
rules  cannot  be  overruled  by  necessity,  unless  they  are 
framed  in  such  a  way  as  not  to  apply  to  a  case  of  neces- 
sity in  self-preservation.  Thus,  for  instance,  the  rules 
that  poisoned  arms  and  poison  are  forbidden,  and  that 
it  is  not  allowed  treacherously  to  kill  or  wound  indi- 
viduals belonging  to  the  hostile  army,  do  not  lose  their 
binding  force  even  if  their  breach  would  effect  an  escape 
from  extreme  danger  or  the  realisation  of  the  purpose 
of  war.    Article  22  of  the  Hague  Regulations  stipulates 

volkerrechtliche  Haftung  der  Staaten  *  See  Westlake,   ii.   pp.    115-117, 

atw  unerlaubten  Handlungen  (1917),  and  Papers,  p.  243. 

pp.    112-118;   Nys,  L'Occupation  de  *  Concerning  the   distinction  be- 

Querre  (1919),  pp.  92-110.     See  also  tween  ii.sage  and  custom,  see  above, 

the  Swiss-Belgian  Riviei-,  ii.  p.  242.  vol.  i.  §  17. 


92  ON  WAR  IN  GENERAL 

distinctly  that  the  right  of  belHgerents  to  adopt  means 
of  injuring  the  enemy  is  not  unlimited,  and  this  rule 
does  not  lose  its  binding  force  in  a  case  of  necessity. 
What  may  be  ignored  in  case  of  military  necessity  are 
not  the  laws  of  war,  but  only  the  usages  of  war.  Kriegs- 
raesan  gelit  vor  Kriegsmanier,  but  not  vor  Kriegsrecht !  ^ 


IV 

THE   REGION   OF   WAR 

Taylor,  §§  471,  498— Heffter,  §  118— Lueder  in  Holtzendorff,  iv.  pp.  362- 
364— Kliiber,  §  242— Liszt,  §  40,  i.— Ullmann,  §  174— Pradier-Fod6r6, 
vi.  No.  2733,  and  viii.  Nos.  3104-3106— Rivier,  ii.  pp.  216-219— 
Boeck,  Nos.  214-230— Longuet,  §§  18-25— Perels,  §  33— Rettich,  Zur 
Theorie  und  Geschichfe  des  Rechts  zum  Kriege  (1888),  pp.  174-213 — Boeck- 
ner,  Der  Krieysschauplatz  (1911) — Schramm,  §  6 — Wehberg,  §  3,  p.  55. 

Region  of  §  70.  Region  of  war  is  that  part  of  the  surface  of 
contrSis-  ^^^  earth  in  which  the  belligerents  may  prepare  and 
tinctionto  exccute  hostihties  against  each  other.     In  this  mean- 

Iheatre      .  .  ^  ... 

of  War.  ing,  '  region  of  war '  ought  to  be  distinguished  from 
'  theatre  of  war.'  The  latter  is  that  part  of  territory, 
or  the  open  sea,  on  which  hostihties  actually  take  place.^ 

^  For  here  the  general  rule  that  appear  to  have  formerly  been  made 

necessity  in  the  interest  of  self -pre-  by  any  other  publicist.     It  becomes 

servation  is  an  excuse  for  an  illegal  quite  apparent  from  Article  39  of  the 

act  cannot  find  application,  because  Hague   Regulations   and  Article  11 

in  the  preamble  of  Hague  Convention  of  Hague  Convention  v. ,  where  the 

IV.   it  is  expressly  stated  that  the  '  theatre  of  war '  means  that  part  of 

rules  of  warfare  were  framed  with  territory  on  which  hostilities  actu- 

regard  to  military  necessities.      'Ac-  allj' take  place.     See  also  Schramm, 

cording  to  the  views  of  the  High  §  6,  p.  58,  and  Wehberg,  p.  59.     In 

Contracting  Parties,  these  provisions.  The  Dominion  Coal  Co.   v.  Maahin- 

the  wording  of  which  has  been  in-  ongre .S7eam«A i^  Co.,  ((1916)  33 T.L.R. 

spired   by   the   desire    to    diminish  132,    340;    (1917)  .34   T.L.R.    212), 

the  evils  of  war  as  far  as  military  the     question    was    of    importance 

requirements  permit,  are  intended  to  whether  a  vessel  had  been  ordered 

serve  as  a  general  rule  of  conduct  by  the  charterers  to  trade   '  in   the 

for  belligerents  in  their  mutual  re-  war  region.'     It  is,  however,  obWous 

lations  and  in  their  relations  with  that    the   parties   did    not   thereby 

the  inhabitants.'  mean   the    'region   of    war'    in  the 

'  The  distinction  between 'region'  sense  used  above,  but  the   'theatre 

and   'theatre'  of  war,  although  of  of  war.'     The  distinction  is  particu- 

considerable    importance,   does    not  larly  evident  in  relation  to  the  open 


THE   REOION   OF  WAR  93 

Legally  no  part  of  the  earth  which  is  not  region  of  war 
may  be  made  the  theatre  of  war  ;  but  not  every  section 
of  the  whole  region  of  war  is  necessarily  theatre  of  war. 
Thus,  in  the  war  between  Great  Britain  and  the  two 
South  African  RepubHcs,  the  whole  of  the  territory  of 
the  British  Empire  and  the  open  sea,  as  well  as  the 
territory  of  the  Republics,  was  the  region  of  war,  but 
the  theatre  of  war  was  in  South  Africa  only.  On  the 
other  hand,  in  the  World  War  the  theatre  of  war  was 
almost  coextensive  with  the  region  of  war. 

§  71.  The  region  of  war  depends  upon  the  belligerents.  Particular 
For  this  reason,  every  war  has  its  particular  region,  so  ev^ry  °  " 
far,  at  any  rate,  as  the  territorial  region  is  concerned.  ^'^*'^- 
For  besides  the  open  sea,^  and  all  such  territories  as  are  as 
yet  not  occupied  by  any  State  (which  are  always  within 
the  region  of  war),  the  particular  region  of  every  war 
is  the  whole  of  the  territories  and  territorial  waters  of 
the  belhgerents.    But  any  part  of  the  globe  which  is  per-  ^ 
manently  neutrahsed  ^  is  always  outside  the  region  of  war. 

Since  dominions  and  colonies  are  a  part  of  the  terri- 
tory of  the  empire  or  mother  comitry,  they  fall  within 
the  region  of  a  war  between  the  latter  and  another 
State,  whatever  their  position  may  be  within  it.     Thus 

sea.    For  instance,  the  right  of  visit  The  Elida,Z.  F.,ix.  (1915),p.  109,  and 

and     capture     may     be     exercised  the  arrangement  between  the  British 

throughout  this  region  of  war,  mines  and    the    Norwegian    Governments 

may  only  be  laid  on  the  theatre  of  that,  for  the  decision  of  The  LoeJcken, 

war,  that  is,  where  actual  fighting  (1918)  34  T.L.R.  594,  the  three-mile 

takes  place.    Therefore  the  region  of  limit   should   be   postulated,    would 

war    remains     unaltered,     but    the  seem  to  show  that  belligerents  are 

theatre  of  war  may  shift  about.  not  prepared  to  recognise  the  claim 

^  Can  States,  through  a  unilateral  of  any  State  to  a  neutral  maritime 

declaration,  extend  the  width  of  their  belt  more  than  three  miles  wide, 

neutral  maritime  belt  beyond  three  NcMspapers      reported      at      the 

miles,  and  thereby  curtail  the  region  beginning  of  the   World  War  that 

of  war?      Bj'  a  decree  of  October  18,  Great  Britain  had  refused  the  claim 

1912,    France    claimed    a    maritime  of    Argentina    and    Uruguay    to    a 

belt  six  miles  wide  for  all  purposes  neutral  belt  wider  than  three  miles  ; 

of  neutrality.    After  the  outbreak  of  but  the  author  was  unable  to  obtain 

the  World  War,   Italy,   when    still  confirmation  of  this.     On  the  other 

neutral,  by  a  decree  of  August  6,1914,  hand.  Great  Britain,  as  a  matter  of 

likewise  claimed  a  neutral  maritime  policy,  ordered  her  cruisers  to  respect 

belt  six  miles  wide.     However,  the  the  six  miles  claimed  by  Italy. 

decision  of  the  German  Prize  Court  in  *  See  below,  §  72. 


94  ON  WAR  IN  GENERAL 

in  the  World  War  the  whole  of  Australia,  Canada, 
India,  and  so  on,  were  included  with  the  British  Islands 
in  the  region  of  war.  And,  further,  as  States  under  the 
suzerainty  of  another  State  are  internationally  in  several 
respects  considered  to  be  a  portion  of  its  territory,^ 
they  fall  within  the  region  of  a  war  between  it  and 
another  Power.  Again,  such  parts  of  the  territory  of 
a  State  as  are  under  the  co7idominium,  or  under  the 
administration,  of  another  State,  ^  fall  within  the  region 
of  a  war  between  oue  of  the  condomini,  or  the  admini- 
strating State,  and  another  Power.  Thus,  in  the  World 
War,  Cj^rus  at  once  fell  within  the  region  of  war  ;  and 
also  the  Soudan,  which  is  under  the  condominium  of 
England  and  Eg^^pt.  On  the  other  hand,  Cyprus  would 
not  have  fallen  ^  within  the  region  of  a  war  between 
Turkey  and  any  other  Power  than  Great  Britain. 

Although  as  a  rule  the  territories  of  both  belligerents, 
together  with  the  open  sea,  fall  within  the  region  of 
war,  and  neutral  territories  do  not,  exceptions  may 
occur : — 

(1)  A  belhgerent  can  deliberately  renounce  its  right 
to  treat  certain  territories,  or  parts  of  the  open  sea,  as 
being  within  the  region  of  war,  provided  that  such  areas 
fulfil  the  duties  incumbent  upon  neutrals.  Thus,  during 
the  Turco-Italian  War,  in  1911  and  1912,  Italy  treated 
Crete  and  Egypt  as  though  they  were  not  parts  of  the 
region  of  war.* 

(2)  Cases  are  possible  in  which  a  part,  or  the  whole, 
of  the  territory  of  a  neutral  State  falls  within  the  region 
of  war.  These  cases  arise  in  wars  in  which  such  neutral 
territories  are  the  very  objects  of  the  war,  as  were  Korea 
(then  an  independent  State)  and  the  Chinese  province 

*  See  above,  vol.  i.  §§91,  169.  attitude  of  Italy  is  explained  by  the 

*  See  above,  vol.  i.  §  171.  fact    that    Kgypt,    although    then 
^  Cyprus  has  since  been  annexed       legally  under  Turkish  suzerainty,  was 

by  Great  Britain.  See  above,  vol.  i.  actually  under  British  occupation, 
§§  50a.  and  that  Crete  was  forcibly  kept  by 

*  There    is    no    doubt    that   this       the  Powers  under  Turkish  suzerainty. 


THE   REGION   OF  WAR  95 

of  Manchuria  ^  in  the  Russo-Japanese  War.  Or  when 
a  neutral  State,  either  dehberately,  or  because  it  has 
not  at  its  disposal  sufficiently  strong  naval  forces,  does 
not  prevent  a  belligerent  from  committing  hostilities  in 
its  territorial  waters,  and  maldng  them  a  basis  for  miUtary 
operations  and  preparations.  These  territorial  waters 
become  in  consequence  a  part  of  the  region  of  war,^  and 
the  other  belligerent  may  also  commit  hostiHties  there. 
Or  again,  if  a  belligerent  army  which  has  crossed  the 
frontier  of  a  neutral  State  is  not  at  once  disarmed  and 
interned,  and  is,  therefore,  able  at  any  moment  to  recross 
the  frontier  and  attack  the  other  belhgerent.^  Necessity 
of  self-defence  can  then  compel  the  latter  also  to  cross 
the  neutral  frontier,  and  pursue  and  attack  the  enemy  on 
a  portion  of  neutral  territory,  which  would  for  this  reason 
become  part  of  the  region  of  war. 

But  if  in  such  an  exceptional  case  neutral  territory 
becomes  the  region  and  theatre  of  war,  and  is  mihtarily 
occupied  by  a  belligerent,  the  occupant  does  not  possess 
such  a  wide  range  of  rights  with  regard  to  the  occupied 
country  and  its  inhabitants  as  he  possesses  in  occupied 
enemy  territory.  He  can  indeed  resort  to  all  measures 
which  are  necessary  for  the  safety  of  his  forces ;  but 
he  cannot  exact  contributions  or  appropriate  cash, 
funds,  and  reaUsable  securities  which  are  the  property 
of  the  neutral  State.  ^ 

^  See  below,  §  320.  sion  of   hostile  acts   committed   by 

*  See  the  judgment  in  the  French  the  enemy  had  turned  Greek  terri- 

case  of   The  Tinoi  (1917),  printed  in  torial    waters    into    a    part   of    the 

B.G.,  xxv.   (1918),  Jurisprudence  en  theatre  of  war.    Greece  did  not  claim 

Matiere  de  Prites   maridmes,  p.    3.  the  vessels,  since  she  had  meanwhile 

The  Ttnos  and  twelve  other  German  joined  the  Allies, 
merchantmen  were  captured  during  '  See  below,  §  339. 

the  World  War,  in  September  1916,  *  See  the  very  lucid  discussion  of 

in  the  roadsteads  of  several  Greek  the  matter  in  Boeckner,  Der  Kriegs- 

ports  by  the  Allies.      Since  Greece  scAowp^a^z  (1911),  pp.  145-208.    Quite 

was  at  that  time  st'll  neutral,  the  different,  of  course,  is  a  case  where 

German  owners  of  the  vessels  claimed  a  belligerent  deliberately  attacks  a 

restitution  on  account  of  these  vessels  neutral   State   in   order  to   force   a 

ha\4ng    been    captured    in    neutral  passage    through    it,     as    (Jermany 

waters ;   but  the  French  Prize  Court  attacked    Belgium     in     the    World 

condemned  them  because  a  succes-  War. 


isation. 


96  ON  WAR  IN  GENERAL 

Exclusion  §  72.  Moieover,  certain  areas  may  be  excluded  from 
ReSon  of  tlic  rcgioii  of  War  through  neutrahsation.  This  may  be 
'^^  ^  permanent,  through  a  general  treaty  of  the  Powers, 
Neutral-  or  temporary,  through  a  special  treaty  between  the 
belhgerents.  At  present  no  part  of  the  open  sea  is 
neutralised,  as  the  neutralisation  of  the  Black  Sea  was 
abohshed  ^  in  1871.  The  following  are  some  important 
instances  ^  of  parts  of  territories  ^  which  are,  or  were  at 
one  time,  permanently  neutralised  : — 

(1)  The  provinces  of  Chablais  and  Faucigny  were 
permanently  neutrahsed  until  the  resettlement  after 
the  World  War.* 

(2)  The  Ionian  Islands  were  permanently  neutrahsed  ^ 
when  they  merged  in  the  kingdom  of  Greece.  But 
this  neutrahsation  w^as  restricted  ^  to  the  islands  of 
Corfu  and  Paxo  only  by  Article  2  of  the  Treaty  of 
London  of  March  24,  1864. 

(3)  The  mouth  and  some  parts  of  the  River  Danube 
were  closed  to  vessels  of  war  by  Article  52  of  the  Treaty 
of  Berhn  of  1878."  The  Rivers  Congo  and  Niger,  and 
aU  their  territories,  were  neutrahsed  by  Articles  25  and 
33  of  the  Berhn  Congo  Act  of  1885  ;  but  this  Act  was 
abrogated  at  the  conclusion  of  the  World  War.^ 

(4)  The  Suez  Canal  is  permanently  neutrahsed  ^ 
since  1888. 

The    Panama  ^^    Canal   is   permanently   neutrahsed 

^  See  above,  vol.  i.  §§  181,  265.  by  France  in  1860,  the  neutralisation 

*  The  matter  is  thoroughly  treated  established  by  the  Vienna  Congress 
in  Rettich,  Zur  TheorieundGeschichte  had  even  then  fallen  to  the  ground. 
des  Rechteszum  Kriege{18S8),^p.  174-  '  Through  Article  2  of  the  Treaty 
213.     See  also  Schramm,  pp.  83-87.  of  London  of  November  14,  1863. 

'  See    Krauel,   NeiUralitdt,    Neu-  *  See  Martens,  N.R.G.,  xviii.  pp. 

tralisation  und  Be/riedung  iw.  Volker-  55,    63.      Nevertheless,    the    Allies 

recht  (1915),  pp.  48-90,  where  all  the  occupied   Corfu   during  the   World 

existing   cases   are  discussed   under  War  as  a  rest  camp  for  the  Serbian 

the  term  of  '  Bef  riedung '  (Pacifica-  army.     See  Garner,  ii.  §  464. 

tion).     That  he  includes  Luxemburg  '  As  to  the  provisions  made  with 

is  very  odd.  regard  to  the  Danube  after  the  ^Vorld 

*  See  above,  vol.  i.  §  207.    Tr6sal,  War,  see  above,  vol.  i.  §  459. 
U Annexion  de  la  tiavoie  en  France  '  See  above,  vol.  i.  §  564. 
(1913),    asserts    that,    through    the  '  See  above,  vol.  i.  §  183. 
annexation  of  Chablais  and  Faucigny  ^^  See  above,  vol.  i.  §  184. 


THE   REGION  OF  WAR  97 

through  Article  3  of  the  Hay-Pauncefote  Treaty  of 
November  18,  1901.  But  this  treaty  is  not  a  general 
treaty  of  the  Powers,  but  only  one  between  Great 
Britain  and  the  United  States. 

By  the  Treaty  of  Peace  between  the  AUied  Powers 
and  Turkey  at  the  end  of  the  World  War,  a  zone  com- 
prising the  Bosphorus  and  Dardanelles  is  placed  under 
an  International  Commission  of  Control,  and  no  belli- 
gerent right  may  be  exercised  in  it,  or  hostihties  be 
committed  there,  except  under  the  authority  of  the 
League  of  Nations. 

These  three  cases  are  cases  of  '  internationahsation  ' 
rather  than  neutralisation. 

(5)  The  Straits  of  Magellan  ^  are  permanently  neutra- 
lised through  Article  5  of  the  Bomidary  Treaty  of  Buenos 
Ayres  of  July  23,  1881,  between  Ai'gentina  and  Chih. 

A  piece  of  territory  along  the  frontier  between  Sweden 
and  Norway  is  neutralised  by  the  Convention  of  Stock- 
holm of  October  26,  1905,  betw^een  Sweden  and  Norway, 
which  includes  rules  concerning  a  neutral  zone,^  but 
stipulates  ^  that  the  neutrahsation  shall  not  be  vahd 
in  a  war  against  a  common  enemy. 

The  neutrahsation  provided  for  in  these  two  cases  is 
the  concern  of  the  contracting  parties  alone,  and  has 
no  consequences  for  third  States. 

(6)  The  territory  of  the  former  Congo  Free  State  was 
neutraUsed  in  comphance  with  Article  10  of  the  General 
Act  of  the  Berhn  Congo  Conference.  In  1908  it  merged 
by  cession  into  Belgium ;  ■*  but  this  did  not  affect  the 
neutrahsation  of  the  territory,  so  long  as  the  Berlin  Act 
was  in  force. ^  However,  the  case  was  unique,  because 
Belgium  was  herself  a  neutrahsed  State. 

^  See  Martens,  N.R.G.,  2nd  Ser.  xxxiv.  p.  703. 

xii.  p.  491,  and  above,  vol.  i.  §  195.  s  gge  Article  1 

The  Bangor,  (1916)  2  B.  andC.  P.  C.  .  ^        ^            ",    •    o  iat 

2Q6  bee  above,  vol.  i.  s  101. 

»  See  Martens,  X.E.G.,  2nd  Ser.  ^  See  above,  vol.  i.  §  564. 

VOL.   II.  G 


98  ON  WAR  IN   GENERAL 

As  regards  temporary  neutralisation,   parts  of  the 
territories  of  belligerents  or  the  open  sea  may  become 
neutrahsed  through  a  treaty  of  the  beUigerents  for  a 
particular  war.     Thus,  when  in  1870  war  broke  out 
between  France  and  Germany,  the  commanders  of  the 
French  man-of-war  ^  Diipleix  and  the  German  man-of- 
war  Hertha — both  stationed  in  the  Japanese  and  Chinese 
waters — through  their  embassies   in  Yokohama,   pro- 
posed to  their  respective  Governments  the  neutrahsa- 
tion  of  these  waters  for  that  war.     Germany  consented, 
but  France  refused.     Again,  at  the  commencement  of 
the  Turco-Italian  War  in  1911,  Turkey  proposed  the 
neutraHsation  of  the  Bed  Sea,  but  Italy  refused  to  agree 
to  it.2 
Asserted       §  73.  That  at  present  no  part  of  the  open  sea  is 
oUhr^^^  neutrahsed  is  universally  recognised,  and  this  apphes 
h-om  the^  to  the  Baltic  Sea,  which  is  admittedly  part  of  the  open 
Region  of  sea.     Somc  writers,^  however,   maintained  before  the 

War 

World  War  that  the  httoral  States  of  the  Baltic  had  a 
right  to  forbid  all  hostihties  within  it  in  a  war  between 
States  other  than  themselves,  and  could  thereby 
neutrahse  it  without  the  consent,  and  even  against  the 
will,  of  the  belhgerents.  This  opinion  was  based  on 
the  fact  that,  during  the  eighteenth  century,  these 
littoral  States  claimed  that  right  in  several  conventions  ; 
but  it  appeared  untenable,  because  it  was  opposed  to 
the  imiversally  recognised  principle  of  the  freedom  of 

1  See  Perels,  §  33,  p.  160,  n.  2.  Ser.  iii.  p.  560,  and  ix.  p.  227.    Again, 

*  Different  from  cases  of  this  kind  according  to  Article  21  of  the  Danube 

is  the  special  protection  during  war  Navigation  Act  signed  at  Galatz  on 

arranged  in  special  conventions  for  November  2,    1865,  the  works   and 

certain    establishments.       Although  establishments  of  all  kinds  created 

the  terms  '  neutrality '  and  '  neutral-  by  the  European   Danube  Commis- 

isation '  are  often  used,  they  are  not  sion  were  to  enjoy  the  benefits  of 

strictly  applicable.     Thus,  Article  3  'neutrality.'     See  Martens,  iV^.  iJ.  G. , 

of  the  Treaty  of  Tangier  of  May  31,  xviii.  p.  144. 
1865,  provided  for  the  'neutrality' 

of  the  lighthouse  at  Cape  Spartel.  ^  See    Perels,    pp.    160-163,    who 

See  Martens,   N.R.O.,  xx.    p.   350;  discusses  the  question  at  some  length 

but  see  also  Martens,  N.R.O.,  2nd  and  answers  it  in  the  affirmative. 


THE   BELLIGERENTS  99 

the  open  sea.  As  no  State  has  territorial  supremacy 
over  parts  of  the  open  sea,  I  could  not  see  how  such  a 
claim  could  be  justified  ;  ^  and,  in  fact,  during  the  World 
War,  hostihties  did  take  place  in  the  Baltic. 


THE   BELLIGERENTS 

Vattel,  iii.  §  4— Phillimore,  iii.  §§  92-93— Taylor,  §§  458-460— Wheaton,  §  294 
— Bluntschli,  §§  511-514— HefiFter,  §§  114-117— Lueder  in  Holtzendorff, 
iv.  pp.  237-248— Kliiber,  §  236— G.  F.  Martens,  ii.  §  264— Gareis,  §  83— 
Liszt,  §  39,  ii.— Ullmann,  §§  168-169— Pradier-Fod6r6,  vi.  Nos.  2656- 
2660— Rivier,  ii.  pp.  207-216 — Nys,  iii.  pp.  23-26 — M^rignhac,  iii".  pp. 
136-139— Martens,  ii.  §  108— Heilborn,  System,  pp.  333-335. 

§  74.  As  the  Law  of  Nations  recognises  the  status  Quaiifica- 
of  war,  and  its  efiects  as  regards  rights  and  duties  be°come  a 
between  the  belligerents  on  the  one  hand,  and,  on  the  ^®^^^\ 

'-'  ,  '  '  gerent 

other,  between  the  belligerents  and  neutral  States,  the  ifacvitas 
question  arises  what  kind  of  States  are  legally  qualified 
to  make  war,  and  thereby  to  become  belligerents. 
Pubhcists  who  discuss  this  question  at  all  speak  for  the 
most  part  of  a  right  of  States  to  make  war,  ?ijus  belli.  But 
if  this  so-called  right  is  examined,  it  turns  out  to  be  no 
right  at  all,  as  there  is  no  corresponding  duty  in  those 
against  whom  the  right  is  said  to  exist.-  A  State  which 
makes  war  against  another  exercises  one  of  its  natural 
functions,  and  the  only  question  is  whether  it  is,  or  is 
not,  legally  qualified  to  exercise  this  function.  Now, 
according  to  the  Law  of  Nations,  full  sovereign  States 
alone  possess  the  legal  qualification  to  become  belh- 
gerents  ;  half  and  part  sovereign  States  are  not  legally 
qualified  to  become  belligerents.  Since  neutraHsed 
States,  as  Switzerland,  are  full  sovereign  States,  they 
are  legally  qualified  to  become  belligerents,  although 

1  See  Rivier,  ii.  p.  218  ;   Bonfils,  "  See  Heilborn,  System,  p.  333. 

§  504  ;  Nys,  i.  pp.  448-450. 


100  ON  WAR   IN  GENERAL 

their  neutralisation  binds  them  not  to  make  use  of  their 
qualification,  except  for  defence.  If  they  become  belh- 
gerents  because  they  are  attacked,  they  do  not  lose 
their  character  as  neutraUsed  States ;  but  if  they 
become  beUigerents  for  offensive  purposes,  they  ipso 
facto  lose  this  character. 
Possi-  §  75.  Such  States  as  do  not  possess  the  legal  quaUfica- 

conSadis-  '^i^^  ^  become  belligerents  are  by  law  prohibited  from 
tinctionto  ofieusive  or  defensive  warfare.     But  the  possession  of 
tion  to      armed  forces  makes  it  possible  for  them  in  fact  to  enter 
Bd°i"^  *  into  war,  and  to  become  belhgerents.     History  records 
gerent.      instauces  enough  of  such  States  having  actually  made 
war.     Thus  in  1876  Serbia  and  Montenegro,  although 
at  that  time  vassal  States  under  Turkish  suzerainty, 
declared  war  against   Turkey,    and   on  February   28, 
1877,  peace  was  concluded  between  Turkey  and  Serbia.^ 
And  when  in  April  1877  war  broke  out  between  Eussia 
and  Turkey,  the  then  Turkish  vassal  State  Roumania 
joined  Russia,  and  Serbia  declared  war  anew  against 
Turkey  in  December  1877.    Further,  in  November  1885  a 
war  was  waged  between  Serbia,  which  had  become  a  full 
sovereign  State,  and  Bulgaria,  which  was  at  the  time  still 
a  vassal  State  under  Turkish  suzerainty.    The  war  lasted 
actually  only  a  fortnight,  but  the  formal  treaty  of  peace 
was  not  signed  until  March  3,  1886,  at  Bucharest ;  ^  and 
although  Turkey  was  a  party  to  it,  Bulgaria  appeared 
as  a  party  thereto  independently,  and  on  its  own  behalf. 
Whenever  a  State  lacking  the  legal  qualification  to 
make  war  nevertheless  actually  makes  war,  it  is  a  belli- 
gerent, the  contention  is  real  war,  and  all  the  rules  of 
International    Law    respecting   warfare   apply   to    it.^ 
Therefore,  an  armed  contention  between  suzerain  and 

^  See  Martens,  N.R.O.,  2nd  Ser.  the  fact  that  Bulgaria  by  accession 

iii.  pp.  171 -173.  became  a  party  to  the  Geneva  Con- 

''  vSee  Martens,  N.R.G.,  2nd  Ser,  vention  at  a  time  when  she  was  still 

xiv.  p.  284.  a  vassal  State  under  Turkish  suze- 

^  This  is  quite  apparent  through  rainty. 


THE   BELLIGERENTS  101 

vassal,  between  a  full  sovereign  State  and  a  vassal 
State  under  the  suzerainty  of  another  State,  and,  lastly, 
between  a  Federal  State  and  one  or  more  of  its  members, 
is  war  ^  in  the  technical  sense  of  the  term  according  to 
the  Law  of  Nations. 

§  76.  The  distinction  between  legal  quaUfication  and  insur- 
actual  power  to  make  war  explains  the  fact  that  ^Bei-'^^ 
insurgents  may  become  a  belhgerent  Power.  It  is  a  p^^g"*^ 
customary  rule  of  the  Law  of  Nations  that  any  State 
may  recognise  insurgents  as  a  belligerent  Power,  pro- 
vided (1)  they  are  in  possession  of  a  certain  part  of 
the  territory  of  the  legitimate  Government ;  (2)  they 
have  set  up  a  Grovernment  of  their  own ;  and  (3)  they 
conduct  their  armed  contention  with  the  legitimate 
Government  according  to  the  laws  and  usages  of  war.^ 
Such  insurgents  in  fact,  although  not  in  law,  form  a 
State-hke  community,  and  they  are  in  fact  making  war, 
although  their  contention  is  by  International  Law  not 
considered  as  war  in  the  technical  sense  of  the  term, 
as  long  as  they  have  not  received  recognition  as  a 
belhgerent  Power. 

§  76a.  Different   from   recognition   of   insurgents   is  The  Case 
recognition  as  a  belhgerent  Power  granted  by  belh-  czeeho- 
gerents  to  separate  armies  comprising  subjects  of  the  Slovaks. 
enemy  who  are  fighting  to  free  their  nation  from  sub- 
jection to  him.     Thus  in  1918,  during  the  World  War, 
Great   Britain,   France,  Italy,  and  the  United  States 
of    America,   recognised    the    Czecho  -  Slovaks   as   co- 
belHgerents.^    By   a   proclamation   dated   August   13, 
1918,    Great   Britain   recognised   them   '  as   an   aUied 

^  See    above,    §    56,    and    Baty,  1900,  adopted  a  body  of  nine  articles 

International   Law  in  South  Africa  concerning  the  rights  and  duties  of 

(1900),  pp.  66-68.  foreign  States  in  case  of  an  insur- 

*  See  above,  §  59.     See  also  Rou-  rection  ;  Articles  4-9  deal  with  the 

gier,  Les  Guerres  civiles,  etc.  (1903),  recognition   of    the   belligerency   of 

pp.    372-413,   and  Westlake,  i.    pp.  insurgents.     See  Annuaire,  xviii.  p. 

50-57.    Thelnstitute  of  International  227. 
Law,  at  its  meeting  at  Neuchatel  in  ^  See  Gamer,  i.  §  26. 


102  ON  WAR  IN  GENERAL 

nation/  their  armies  as  *  an  allied  and  belligerent  army 
waging  regular  warfare  against  Austria-Hungary  and 
Germany/  and  their  National  Council  *  as  the  supreme 
organ  of  national  interests  and  as  the  present  trustee 
of  the  future  Czecho-Slovak  Government  to  exercise 
supreme  authority  over  this  alHed  and  belligerent 
army/  The  Govenunent  of  the  United  States,  by 
proclamation  dated  September  3,  1918,  recognised  a 
*  state  of  belligerency '  between  the  organised  armies 
of  the  Czecho-Slovaks  and  the  German  and  Austro- 
Hungarian  empires,  and  the  National  Council  as  '  a 
de  facto  belhgerent  Government  clothed  with  proper 
authority  to  direct  the  mihtary  and  pohtical  affairs  of 
the  Czecho-Slovaks/ 

There  is  no  doubt  that  the  enemy  is  in  law  not  com- 
pelled to  grant  them  similar  recognition  ;  he  is  justified 
in  law  in  considering  the  members  of  such  armies  as 
traitors.  But  humanity  ought  to  induce  him  to  treat 
them,  when  captured,  as  prisoners  of  war,  and  not  as 
criminals. 
Principal       §  77.  War  occurs  usually  between  two  States,   one 

and  Ac-  ,        .  ^  .  "^  ' 

cessory     ou  cach  Side.     But  m  some  wars  there  are  on  one  or 
gerent      ^u  both  sidcs  scvcral  parties,  and  then  principal  and 
Parties,     acccssory  belhgerents  are  sometimes  to  be  distinguished. 
Principal  belhgerents  are  those  parties  to  a  war  who 
wage  it  on  the  basis  of  a  treaty  of  alhance,  whether 
concluded  before  or  during  the  war.     Accessory  belh- 
gerents are  such  States  as  provide  help  and  succour 
only  in  a  hmited  way  to  a  principal  belhgerent ;    for 
instance,  by  paying  subsidies,  sending  a  certain  number 
of   troops   or   men-of-war,  granting  a  coahng  station 
to  the  men-of-war  of  a  principal  party,  allowing  his 
troops  a  passage  through  their  territory,  and  the  like. 
Such  accessory  party  becomes  a   belligerent  through 
rendering  help. 

The  matter  need  hardly  be  mentioned  at  all,  were  it 


ARMED   FORCES   OF  THE   BELLIGERENTS  103 

not  that  publicists  formerly  discussed  whether  or  not 
a  neutral  State  which  fulfilled  in  time  of  war  a  treaty 
concluded  in  time  of  peace,  by  the  terms  of  which  it 
had  to  grant  a  coaling  station,  the  passage  of  troops 
through  its  territory,  and  the  like,  to  one  of  the  belli- 
gerents, violated  its  neutrality.  This  question  is  identical 
with  the  question  ^  whether  a  quahfied  neutrality,  in 
contradistinction  to  a  perfect  neutrahty,  is  admissible. 
Since  the  answer  to  this  question  is  in  the  negative, 
such  State  as  fulfils  a  treaty  obligation  of  this  kind  in 
time  of  war  may  be  considered  by  the  other  side  to 
be  an  accessory  belhgerent.  All  doubt  in  the  matter 
ought  to  have  been  removed,  since  Article  2  ^  of  Hague 
Convention  v.  categorically  enacted  that  '  belhgerents 
are  forbidden  to  move  across  the  territory  of  a  neutral 
Power  troops  or  convoys  either  of  munitions  of  war  or 
of  supphes.' 

VI 

THE  ARMED  FORCES  OF  THE  BELLIGERENTS 

Vattel,  iii.  §§  223-231— Hall,  §§  177-181— Lawrence,  §§  148-150— Westlake, 
ii.  pp.  64-67 — Manning,  pp.  206-209 — Phillimore,  iii.  §  94 — Twiss,  ii. 
§  45— Halleck,  i.  pp.  555-562— Hershey,  Nos.  352-354,  403— Taylor, 
§§  471-476— Moore,  vii.  §  1109— Wheaton,  §§  356-358— Bluntschli,  §§ 
569-572— Heffter,  §§  124-124"— Lueder  in  Holtzendorff,  iv.  pp.  371-387 
— Kliiber,  §  267— G.  F.  Martens,  ii.  §  271— Gareis,  §  83— UUmann,  §  175 
—Liszt,  §  40,  ii.— Bonfils,  Nos.  1088-1098— Despagnet,  Nos.  520-523— 
M6rignhae,  iii".  pp.  139-155— Pradier-Fod6r6,  vi.  Nos.  2721-2732,  and 
viii.  Nos.  3091-3103— Nys,  iii.  pp.  85-134— Rivier,  ii.  pp.  242-259— 
Calvo,  iv.  §§  2044-2065— Fiore,  iii.  Nos.  1303-1316,  and  Code,  Nos. 
1460-1480— Martens,  ii.  §  112— Longuet,  §§  26-36— Fillet,  pp.  35-59— 
Kriegsbrauch,  pp.  4-8— Perels,  §  34— Boeck,  Nos.  209-213— Dupuis, 
Nos.  74-91 — Lawrence,  War,  pp.  195-218— Zorn,  pp.  36-73 — Bordwell, 
pp.  228-236— ianrf  Warfare,  §  17-38— Meurer,  ii.  §§  11-20— Spaight, 
pp.  45-72— Ariga,  pp.  74-91— Takahashi,  pp.  89-93— Schramm,  §§  12,  16 
— Wehberg,  §  4— Garner,  i.  §§  245,  250-264. 

§  78.  The  chief  part  of  the  armed  forces  of  the  belH- 
gerents  are  their   regular  armies   and  navies.     What 

^  See  below,  §  305.  -  See  also  Article  3  of  Convention  v. 


104  ON  WAR  IN  GENERAL 

Regular    kiiids  of  foices  coiistitute  a  regular  army  and  a  regular 
and"^^     navy  is  not  for  International  Law  to  determine,  but  a 
Navies,     matter   of    Municipal   Law    exclusively.     Whether   or 
not   so-called   militia   and   volunteer  corps   belong  to 
armies  rests  entirely  with  the  Municipal  Law  of  the 
beUigerents  ;   and  there  are  several  States  whose  armies 
consist  of  mihtia  and  volunteer  corps  exclusively,  no 
standing  army  being  provided  for.     The  Hague  Regu- 
lations  expressly  stipulate  ^  that  in   countries  where 
mihtia  or  volunteer  corps  constitute  the  army,  or  form 
part  of  it,  they  are  included  under  the  denomination 
'  army."     It  is  Ukewise  irrelevant  to  consider  the  compo- 
sition of  a  regular  army,  whether  it  is  based  on  con- 
scription or  not,  whether  foreigners  as  well  as  subjects  are 
enrolled,  and  the  like. 
Non-Com-     §  79.  In   the   main,    armed   forces   consist   of   com- 
Members   batants  ;  but  no  army  in  the  field  consists  of  combatants 
of  Armed  exclusivcly.     There  are  always  several  kinds  of  other 

l^orces.        ...  .  "^ 

individuals,  such  as  couriers,  doctors,  farriers,  veterinary 
surgeons,  chaplains,  nurses,  official  and  voluntary  am- 
bulance men,  contractors,  canteen-caterers,  newspaper 
correspondents,^  civil  servants,  diplomatists,  and  foreign 
mihtary  attaches^  in  the  suite  of  the  commander-in-chief. 
Writers  on  the  Law  of  Nations  do  not  agree  as  regards 
the  position  of  these  non-combatants ;  they  are  not 
mere  private  individuals,  yet  are  certainly  not  com- 
batants, although  they  may — as,  for  instance,  couriers, 
doctors,  farriers,  and  veterinary  surgeons — have  the 
character  of  soldiers.  They  may  correctly  be  said  to 
belong  indirectly  to  the  armed  forces.  Article  3  of  the 
Hague  Regulations  expressly  stipulates  that  the  armed 
forces  of  the  belligerents  may  consist  of  combatants  and 
non-combatants,  and  that  both,  in  case  of  capture, 

*  Article  1.  the  Private  Citizen  (1912),  pp.  91-112. 

*  See   Rey  in  R.G.,  xvii.   (1910),  »  See   Rey  in  R.G.,  xvii.   (1910), 
pp.   73-102,  and  Higgins,    War  and       pp.  63-73. 


ARMED   FORCES   OF  THE   BELLIGERENTS  105 

must  be  treated  as  prisoners  of  war,  provided  ^  they 
produce  a  certificate  of  identification  from  the  mihtary 
authorities  of  the  army  which  they  accompany.  How- 
ever, when  one  speaks  of  armed  forces  generally,  com- 
batants only  are  imder  consideration. 

The  question  whether  women  may  be  considered  as 
non-combatant  members  of  armed  forces  came  into 
prominence  during  the  World  War,  when  thousands 
were  em'olled,  and  sent  to  the  front  to  serve  as  army 
cooks,  drivers,  store-keepers,  and  the  Uke.  I  think  the 
question  must  be  answered  in  the  affirmative. 

§  80.  Very  often  the  armed  forces  of  belhgerents  irregular 
consist  throughout  the  war  of  their  regular  armies  only  ;  °^°^ ' 
but  it  happens  frequently  that  irregular  forces  take 
part.  Of  such  irregular  forces  two  different  kinds  are 
to  be  distinguished — first,  such  as  are  authorised  by 
the  belligerents  ;  and,  secondly,  such  as  are  acting  on 
their  own  initiative,  and  on  their  own  account,  without 
special  authorisation.  Formerly  it  was  a  recognised 
rule  of  International  Law  that  only  the  members  of 
authorised  irregular  forces  enjoyed  the  privileges  due 
to  the  members  of  the  armed  forces  of  belhgerents ; 
members  of  unauthorised  irregular  forces  were  con- 
sidered to  be  war  criminals,  and  could  be  shot  when 
captured.  During  the  Franco-German  War  in  1870, 
the  Germans  acted  throughout  according  to  this  rule 
with  regard  to  the  so-called  '  franctireurs,'  requesting 
the  production  of  a  special  authorisation  from  the 
French  Government  from  every  irregular  combatant 
whom  they  captured,  faihng  which  he  was  shot.  But 
according  to  Article  1  of  the  Hague  Eegulations  this 
rule  is  now  obsolete  ;  and  its  place  is  taken  by  the  rule 
that  irregulars  enjoy  the  pri\41eges  due  to  members  of 
the  armed  forces  of  the  belhgerents,  although  they  do 
not   act   under  authorisation,  provided  (1)  that   they 

1  See  below,  §  127. 


Ttiaese. 


106  ON  WAR  IN  GENERAL 

are  commanded  by  a  person  responsible  for  his  sub- 
ordinates, (2)  that  they  have  a  fixed  distinctive  emblem 
recognisable  at  a  distance,^  (3)  that  they  carry  arms 
openly,^  and  (4)  that  they  conduct  their  operations  in 
accordance  with  the  laws  and  customs  of  war.  It 
must,  however,  be  emphasised  that  this  rule  applies 
only  to  irregulars  fighting  in  bodies,  however  small. 
Such  individuals  as  take  up  arms  or  commit  hostile 
acts  singly  and  severally  are  still  Hable  to  be  treated 
as  war  criminals,  and  shot.^ 
Levies  en  §  81.  It  somctimcs  happens  during  war  that,  on  the 
approach  of  the  enemy,  a  belhgerent  calls  the  whole 
population  of  the  country  to  arms,  and  thus  makes 
them  a  part,  although  a  more  or  less  irregular  part,  of 
his  armed  forces.  Provided  they  receive  some  organisa- 
tion, and  comply  with  the  laws  and  usages  of  war,  the 
combatants  who  take  part  in  such  a  levy  en  masse 
organised  by  the  State  enjoy  the  privileges  due  to 
members  of  armed  forces. 

Or  again,  sometimes  a  levy  en  masse  takes  place  spon- 
taneously, without  organisation  by  a  belhgerent,  and 
the  question  arises  whether,  or  not,  those  who  take 
part  in  such  levies  en  masse  belong  to  the  armed  forces 
of  the  beUigerents,  and  therefore  enjoy  the  privileges 
due  to  members  of  such  forces.  Article  2  of  the  Hague 
Eegulations  stipulates  that  the  population  of  a  territory 
not  yet  occupied  who,  on  the  enemy's  approach,  spon- 
taneously take  up  arms  to  resist  the  invading  enemy, 

^  The     distance     at     which     the        See  Ariga,    p.    87,    concerning    120 
emblem    should   be    visible    is    un-        irregulars     who     were     treated    as 


determined.     See  Land   Warfare,  §  criminals  and  shot  by  the  Japanese 

23,  where  it  is  pointed  out  that  it  after    the   occupation    of    Vladimi- 

is    reasonable    to    expect   that    the  rowka  on  the  island  of  Sakhaline. 

silhouette  of  an  irregular  combatant  *  See  Land   Warfare,  §  26  ;   indi- 

standing  against  the  skyline  should  viduals  whose  sole  arm  is  a  pistol, 

be  at  once  distinguishable  from  that  hand-grenade,    a    dagger    concealed 

of   a   peaceable    inhabitant   by   the  about  the  person,  or  a  sword-stick, 

naked  eye  of   ordinary  indi\'iduals,  are   not   such   as   carry   their   arms 

at  a  distance  at  which  the  form  of  openly, 

an  individual   can   be    determined.  *  See  below,  §  254. 


ARMED   FORCES   OF  THE   BELLIGERENTS  107 

without  liaviug  time  to  organise  themselves  under 
responsible  conunanders  and  to  procure  fixed  distinc- 
tive emblems  recognisable  at  a  distance,  shall  never- 
theless enjoy  the  privileges  due  to  armed  forces,  pro- 
vided that  they  carry  arms  openly,  and  act  otherwise 
in  conformity  with  the  laws  and  usages  of  war.  Totally 
different,  however,  is  a  levy  en  masse  of  the  population 
of  a  territory  already  invaded  by  the  enemy,  for  the 
purpose  of  freeing  the  country  from  the  invader.  Article 
2  of  the  Hague  Regulations  does  not  cover  this  case, 
in  which,  therefore,  the  old  customary  rule  of  Inter- 
national Law  is  vahd,  that  those  taking  part  in  such  a 
levy  en  masse,  if  captured,  are  liable  to  be  shot.^ 

It  is  of  particular  importance  not  to  confound  invasion 
with  occupation  in  this  matter.  Article  2  distinctly 
speaks  of  the  approach  of  the  enemy,  and  thereby 
sanctions  only  such  a  levy  en  masse  as  takes  place  in 
territory  not  yet  invaded  by  the  enemy.  Once  the 
territory  is  invaded,  although  the  invasion  has  not 
yet  ripened  into  occupation,^  a  levy  en  masse  is  no 
longer  legitimate.  But,  of  course,  the  term  territory, 
as  used  by  Article  2,  is  not  intended  to  mean  ^  the  whole 
extent  of  the  State  of  a  belligerent,  but  only  such  parts 
of  it  as  are  not  yet  invaded.  For  this  reason,  if  a  town 
is  already  invaded,  but  not  a  neighbouring  town,  the 
inhabitants  of  the  latter  may,  on  the  approach  of  the 
enemy,  legitimately  rise  en  masse.  And  it  matters  not 
whether  the  individuals,  in  doing  so,  are  acting  in 
immediate  combination  with  a  regular  army  or  sepa- 
rately from  it.* 

§  82.  As  International  Law  grew  up  amongst  the  Barbarous 
States  of  Christendom,  and  the  Family  of  Nations  in-  ^°^°®^- 
eludes  only  civihsed,  although  not  necessarily  Christian, 

1  See  below,  §  254.  below,  §  167. 

^  Concerning    the   difference    be-  ^  See  Land  Warfare,  §§  31-32. 

tween  invasion  and  occupation,  see  *  See  Land  Warfare,  §  34. 


108  ON  WAR  IN  GENERAL 

States,  all  writers  on  International  Law  agree  that,  in 
wars  between  themselves,  the  members  of  the  Family 
of  Nations  should  not  make  use  of  barbarous  forces — 
i.e.  troops  consisting  of  individuals  belonging  to  savage 
tribes  and  barbarous  races.  But  it  can  hardly  be 
maintained  that  a  rule  of  this  kind  has  customarily 
grown  up  in  practice,  nor  has  it  been  stipulated  by 
treaties,  and  the  Hague  Regulations  overlook  this 
point.  It  is  therefore  difficult  to  say  whether  such 
fighters,  if  employed  in  a  war  between  members  of  the 
Family  of  Nations,  would  enjoy  the  privileges  due  to 
members  of  armed  forces  generally.  I  see  no  reason 
why  they  should  not,  provided  they  would  or  could 
comply  with  the  laws  and  usages  of  war  prevalent 
according  to  International  Law.  But  the  very  fact 
that  they  are  barbarians  makes  it  probable  that  they 
could  or  would  not  do  so  ;  it  would  then  be  unreason- 
able to  grant  them  the  privileges  generally  due  to 
members  of  armed  forces,  and  it  would  be  necessary  to 
treat  them  according  to  discretion.^  But  the  employ- 
ment of  barbarous  forces  must  not  be  confounded  with 
the  enroUing  of  coloured  individuals  into  the  regular 
army  and  the  employment  of  regiments  consisting  of 
disciphned  coloured  soldiers.  There  is  no  reason  what- 
ever why,  for  instance,  the  members  of  a  regiment  formed 
by  the  United  States  of  America  out  of  negroes  bred  and 
educated  in  America,  or  members  of  Indian  regiments 
under  EngHsh  commanders,  should  not,  in  wars  between 
members  of  the  Family  of  Nations,  enjoy  the  privileges 
due  to  the  members  of  armed  forces  according  to  Inter- 
national Law.  In  fact,  the  United  States  employed 
two  coloured  cavalry  regiments  in  Cuba  during  her 
war  with   Spain,   and,  during  the  World  War,  some 

^  As  regards  the  limited  use  made  War,  see  The  Times  History  of  the 

of  armed  natives  as  scouts,  and  the  War  in  South  Africa,  v.  pp.  249-251. 

like,  on  the  part  of  the  British  com-  The   Boers   refused   quarter   to  any 

manders   during   the  South-African  who  fell  into  their  hands. 


ARMED   FORCES   OF  THE   BELLIGERENTS  109 

Indian  regiments  were  employed  by  Great  Britain  in 
France. 

§  83.  Formerly  privateers  were  a  generally  recog-  Priva- 
nised  part  of  the  armed  forces  of  the  belligerents,  private  ^^^"' 
vessels  being  commissioned  by  the  belligerents  through 
letters  of  marque  to  carry  on  hostilities  at  sea,  and  par- 
ticularly to  capture  enemy  merchantmen.^  From  the 
fifteenth  century,  when  privateering  began  to  grow  up, 
down  to  the  eighteenth  century,  belligerents  used  to 
grant  letters  of  marque  to  private  ships  owned  by 
neutral  subjects  as  well  as  by  their  own.  But  during 
the  eighteenth  century  it  became  the  practice  to  grant 
them  to  ships  belonging  to  their  own  subjects  only.^ 
However,  privateering  was  abohshed  by  the  Declara- 
tion of  Paris  in  1856  as  between  the  signatory 
Powers  and  others  who  joined  it  later.  Although 
privateering  would  still  be  legal  as  between  other 
Powers,  it  will  in  future  scarcely  be  made  use  of.  In  all 
the  wars  that  have  occurred  since  1856  between  such 
Powers,  no  letters  of  marque  have  been  granted.^ 

§  84.  A  case  which  happened  in  1870,  soon  after  the  Converted 
outbreak  of  the  Franco-German  War,  raised  the  question  ^en°^^"^ 
whether  converted  '^  merchantmen  could  be  considered 

^  See  Martens,  Es^ai  concernant  les  have  been  made  on  the  part  of  free- 

Armateitrs,  les  Prises,  tt  surtout  les  lances  to  win  public  opinion  for  a 

/?ejoriises  (1795);  LaMache,  TyaCrwer/'fi  retrograde  step.     See,  for  instance, 

dela  Course  (\^0\) ;  Willms,  Die  Um-  Munro-Butler  Johnstone,  Handbook 

wandlung  von  Kauffahrteischiffen  in  of  Maritime  Rights  ;  and  the  Declara- 

Kriegsschiffe  (1912)  ;  Wehberg,  §  4.  lion  of  Paris  Considered  (1876),  and 

*  Many  publicists   maintain   that  Gibson  Bowles,    The  Declaration  of 

nowadays  a  privateer  commissioned  Par-is  of  18S6  (1900) ;  see  also  Perels, 

by  another  State  than  that  of  which  pp.  177-179.     As  the  Declaration  of 

he  is  a  subject  is  liable  to  be  treated  Paris  is  a  law-making  treaty  which 

as  a  pirate  when   captured.      With  does   not   bestow  a  right  upon   the 

this,  however,  I  cannot  agree ;    see  several    signatory    Powers   to    give 

above,  vol.  i.  §  273,  Hall,  §  81,  and  notice    of   withdrawal,    a   signatory 

below,  §  330.  Power  is  not  at  liberty  to  give  such 

'  See   below,   §    177.       It  is  con-  notice,  although  Mr.  Gibson  Bowles 

fidently  to  be  hoped  that  the  great  (op.  ctV.,pp.  169-179)  asserts  that  this 

progress   made  by  tiie  abolition   of  could  be  done.    See  above,  vol.  i.  §  12. 

privateering  through  the  Declaration  *  See     Guich^neuc,     La     Marine 

of  Paris  will  never  be  undone.     But  auxiliaire      en     Droit    international 

it  is  of  importance  to  note  the  fact  (1900)  ;    Willms,    op.    cit.  ;    Kriege, 

that  up  to  the  present  day  endeavours  in  ^./.,  xxvi.  (1915),  pp.  71-117. 


110  ON  WAR  IN  GENERAL 

part  of  the  armed  naval  forces  of  a  belligerent.    As  the 
North-German  Confederation  owned  only  a  few  men- 
of-war,  the  creation  of  a  volunteer  fleet  was  intended. 
So  the  King  of  Prussia,  as  President  of  the  Confedera- 
tion, invited  the  owners  of  private  German  vessels  to 
make  them  part  of  the  German  navy  under  the  follow- 
ing conditions  :    Every  ship  should  be  assessed  as  to 
her  value,  and  10  per  cent,  of  it  should  at  once  be  paid 
in  cash  to  the  owner,  as  a  price  for  the  charter  of  the 
ship.     The  owner  should  engage  the  crew  himself,  but 
they  should  become  for  the  time  of  the  war  members 
of   the   German  navy,    and   wear   the   German   naval 
uniform.     The  ship  should  sail  under  the  German  war 
flag,  and  be  armed  and  adapted  for  her  purpose  by  the 
German  naval  authorities.     Should  she  be  captured  or 
destroyed  by  the  enemy,  the  assessed  value  should  be 
paid  to  her  owners  in  full ;   but  should  she  be  restored 
after  the  war  undamaged,  the  owner  should  retain  the 
10  per  cent,  received  as  charter  price.     All  such  vessels 
should  only  try  to  capture  or  destroy  French  men-of- 
war,  and,  if  successful,  the  owner  should  receive  between 
£1500  and  £7500  as  a  premium.     The  French  Govern- 
ment considered  this  scheme  a  disguised  evasion  of  the 
Declaration  of  Paris  which  abolished  privateering,  and 
requested    the    intervention    of    Great    Britain.     The 
British  Government  brought  the  case  before  the  law- 
officers  of  the  Cro\vn,  who  declared  the  German  scheme 
to  be  substantially  different  from  the  revival  of  privateer- 
ing, and  consequently  the  British  Government  refused 
to  object  to  it.     The  scheme,  however,  was  never  put 
into  practice.^ 

Now,  in  spite  of  the  opinion  of  the  British  law-officers, 
writers  on  International  Law  differ  as  to  the  legality 
of  the  above  scheme  ;  but,  on  the  other  hand,  they  are 
unanimous  that  not  every  scheme  for  a  voluntary  fleet 

1  See  Perele,  §  34  ;  Hall,  §  181  ;  Boeck,  No.  211  ;  Dupuis,  Nos.  81-84. 


ARMED   FORCES   OF  THE   BELLIGERENTS  111 

is  to  be  rejected.  Russia/  in  fact,  from  1877  possessed 
a  voluntary  fleet.  France  ^  had  before  the  World  War 
made  arrangements  with  certain  steamship  companies 
according  to  which  their  mail-boats  had  to  be  con- 
structed on  plans  approved  by  the  Government,  com- 
manded by  officers  of  the  French  navy,  and  incorporated 
in  the  French  navy  at  the  outbreak  of  war.  Great 
Britain  from  1887  onwards  entered  into  agreements 
with  several  powerful  British  steamship  companies  for 
the  purpose  of  securing  their  vessels  at  the  outbreak 
of  hostilities  ;  and  the  United  States  of  America  in 
1892  made  similar  arrangements  with  the  American 
Line.^ 

Matters  were  brought  to  a  climax  in  1904,  during  the 
Russo-Japanese  War,  through  the  cases  of  Peterburg 
and  Smolensk.'^  On  July  4  and  6  of  that  year,  these 
vessels,  which  belonged  to  the  Russian  volunteer  fleet 
in  the  Black  Sea,  were  allowed  to  pass  the  Bosphorus 
and  the  Dardanelles,  which  were  closed  ^  to  men- 
of-war  of  all  nations,  because  they  were  flying  the 
Russian  commercial  flag.  They  hkewise  passed  the 
Suez  Canal  under  the  commercial  flag ;  but,  after 
leaving  Suez,  they  converted  themselves  into  men-of- 
war  by  hoisting  the  Russian  war  flag,  and  began  to 
exercise  over  neutral  merchantmen  all  the  rights  of 
supervision  which  belhgerents  can  claim  for  their  cruisers 
in  time  of  war.  On  July  13  Peterburg  captured  the 
British  P.  and  0.  steamer  Malacca  for  alleged  carriage 
of  contraband,  and  put  a  prize-crew  on  board  for  the 
purpose  of  navigating  her  to  Libau.  But  the  British 
Government  protested  ;  the  Malacca  was  released  at 
Algiers  on  her  way  to  Libau  on  July  27,  and  Russia 

1  See  Dupuis,  No.  85.  3103. 

*  See  Dupuis,  No.  86.  *  See  the  details  of  the  career  of 

*  See  Lawrence,  §201,  and  Dupuis,  these  vessels  in  Lawrence,  War,  pp. 
Nos.  87-88.     On  the  whole  question  205  seq. 

see  Pradier-Fod6r6,  viii.  Nos.  3102-  ^  See  above,  vol.  i.  §  197. 


112  ON    WAR   IN   GENERAL 

agreed  that  Peterburg  and  Smolensk  should  no  longer 
act  as  cruisers,  and  that  all  neutral  vessels  captured 
by  them  should  be  released. 

This  case  was  the  cause  of  the  question  of  the  con- 
version of  merchantmen  into  men-of-war  being  taken 
up  by  the  Second  Hague  Conference  in  1907,  and  dealt 
with  in  Convention  vii.^  This  convention,  which  was 
signed  by  all  the  States  represented  at  the  conference  ex- 
cept the  United  States  of  America,  China,  San  Domingo, 
Nicaragua,  and  Uruguay,  comprised  twelve  articles  ; 
its  more  important  stipulations  were  the  following  : 
No  converted  vessel  can  have  the  status  of  a  warship 
unless  she  is  placed  under  the  direct  authority,  imme- 
diate control,  and  responsibihty  of  the  Power  whose 
flag  she  flies  (Article  1).  Such  a  vessel  must,  therefore, 
bear  the  external  marks  which  distinguish  the  warships 
of  her  nationahty  (Article  2)  ;  the  commander  must  be 
in  the  service  of  the  State,  must  be  duly  commissioned, 
and  his  name  must  figure  on  the  Hst  of  the  officers  of 
the  mihtary  fleet  (Article  3)  ;  and  the  crew  must  be 
subject  to  the  rules  of  mihtary  disciphne  (Article  4). 
A  converted  vessel  must  observe  the  laws  and 
usages  of  war  (Article  5),  and  her  conversion  must  as 
soon  as  possible  be  announced  by  the  belhgerent 
concerned  in  the  list  of  the  ships  of  his  mihtary  fleet 
(Article  6).2 

During  the  World  War  converted  merchantmen  were 
freely  employed. 

The  opinion,  which  largely  prevailed  before  the  World 
War,  that  by  permitting  the  conversion  of  merchant- 
men into  men-of-war  privateering  had  been  revived, 
is  absolutely  unfounded,  for  the  rules  of  Convention  vn. 

1  See  Wilson  in  A.J.,  ii.  (1908),  Private  Citizen  (\%\2),  pp.  115-165. 

pp.    271-275  ;    L6monon,    pp.    607-  ^  It   must   be   specially    observed 

622 ;  Higgins,  pp.  312-321  ;  Dupuis,  that  a  merchantman  which  has  been 

Guerre,    Nos.     48-58;    Nippold,    ii.  armed  only  for  the  pjjrpose  of  defence 

pp.    73-84  ;    Scott,    Conferences,  pp.  is  not  thereby  converted  into  a  man- 

568-576;     Higgins,     War    and    the  of-war.     See  .4./.,  ix.  (1915),  p.  188. 


ARMED   FORCES   OF  THE   BELLIGERENTS  113 

in  no  way  abrogated  the  rule  of  the  Declaration  of  Pans 
that  privateering  is  and  remains  abohshed.  But  the 
convention  was  unsatisfactory  because  it  did  not  settle 
the  questions  where  conversion  may  be  performed,  and 
whether  it  was  permissible  to  reconvert  into  a  merchant- 
man, before  the  termination  of  the  war,  a  vessel  which 
during  the  war  had  been  converted  into  a  warship. 
The  Powers  could  not  come  to  an  agreement  on  these 
two  points,  one  party  claiming  that  conversion  could 
only  be  performed  within  a  harbour  of  the  converting 
Power,  or  an  enemy  harbour  occupied  by  it,  the  other 
party  defending  the  claim  to  convert  on  the  high  seas 
as  well ;  and  the  preamble  of  Convention  vii.  stated 
expressly  that  the  place  where  a  conversion  might  be 
performed  remained  an  open  question.  It  was  still 
open  when  the  World  War  broke  out,  and  Great  Britain, 
which  belonged  to  the  party  denying  a  right  to  convert 
on  the  high  seas,  at  once  made  it  known  that  if  German 
vessels,  after  leaving  American  ports,  were  converted 
into  men-of-war  on  the  high  seas,  it  would  hold  the 
United  States  Government  responsible  for  resulting 
damage.^  Those  Powers  which  claim  that  conversion  ^ 
must  not  take  place  on  the  high  seas  may  still  refuse 
to  acknowledge  the  pubHc  character  of  any  vessel 
which  has  been  converted  on  the  high  seas,  and 
may  still  uphold  their  view  that  a  converted  vessel 
may  not  alternately  claim  the  character  and  the 
privileges  of  a  belHgerent  man-of-war  and  a  mer- 
chantman. 

§  85.  In  a  sense,  the  crews  of  merchantmen  owned  The 
by  subjects  of  a  belligerent  belong  to  its  armed  forces.  MercLnt- 
For  those  vessels  are  Uable  to  be  seized  by  enemy  men-  ™en. 
of-war,  and,  if  attacked  for  that  purpose,  they  may 

'  See  Garner,  i.  §  245,  and  A.J.^  an  enemy  merchantman,  captured  on 

ix.   (1915),  Special  Supplement,  pp.  the  high  seas,  may  at  once  be  con- 

222-223.  verted   into  a   warship,  see   below, 

*  Concerning  the  question  whether  §185. 

VOL.   II.  H 


114  ON  WAR  IN  GENERAL 

defend  ^  themselves,  may  return  the  attack,  and  even- 
tually seize  the  attacking  men-of-war.  The  crews  of 
merchantmen  become  in  such  cases  combatants,  and 
enjoy  all  the  privileges  of  the  members  of  armed  forces. 
But  unless  attacked,  they  must  not  commit  hostihties, 
and  if  they  do  so,  they  are  hable  to  be  treated  as 
criminals,  just  as  are  private  individuals  who  commit 
hostihties  in  land  warfare.  Some  writers  ^  assert  that, 
although  merchantmen  of  the  belligerents  are  not 
competent  to  exercise  the  right  of  visit,  search,  and 
captm'e  towards  neutral  vessels,  they  may  attack 
enemy  vessels — merchantmen  as  well  as  pubhc  vessels 
— not  merely  for  the  purpose  of  defence,  but  even 
without  having  been  previously  attacked,  and  that, 
consequently,  the  crews  must  in  such  case  enjoy  the 
privileges  due  to  members  of  the  armed  forces.  But 
this  opinion  is  absolutely  without  foundation  nowadays  ;^ 
even  in  former  times  it  was  not  generally  recognised.* 

In  regard  to  the  fate  of  the  crews  of  captured  merchant- 
men, a  distinction  is  to  be  made  according  as  to  whether, 
or  no,  a  vessel  has  defended  herself  against  a  legitimate 
attack.  In  the  first  case,  members  of  the  crew  become 
prisoners  of  war,  for  by  legitimately  taking  part  in  the 
fighting  they  have  become  members  of  the  armed  forces 
of  the  enemy.  ^    In  the  second  case.  Articles  5  to  7  of 

^   The  Catharina  Elizabeth,  (1804)  pp.  17-21  ;  Anderson  and  Stowell  in 

5  C.  Rob.  232.     See  Wheaton,  §  528  ;  the    Proceedings    of   the    American 

Twiss,  ii.  §  97  ;  Phillimore,  iii.  §  340  ;  Society    of   International    Lavj,    xi. 

Hall,    §   182;  Halleck,    ii.  p.    269;  (1917),  pp.  11-23;  Garner,!.  §§250- 

American  Naval  War  Code,  Article  264. 

10 ;  Bordwell,  p.  236  ;  Fiore,  Code,  ^  See   Wheaton,    §   357  ;    Taylor, 

No.   1698.     This  rule  had  not  been  §496;  Walker,  p.  135,  and  Science, 

contested   until   shortly   before   the  p.  268  ;  and  International  Law  Xotes, 

outbreak   of   the  World  War;    but  iii.  p.  51,  where  the  assertion  is  still 

see  now  below,  §  181  n.  ;  Oppenheim  made  bj'  Gregory,  Scott,  and  others, 

and  Triepel  in  Z.  V.,  viii.  (1914),  pp.  ^  g^g  below,  §  181,  and  Hall,  §  183. 

154-169,    378-406  ;    Higgins,   Armed  *  See  Vattel,  iii.  §  226,  and  G.  F. 

Merchantahips  {VJl'i)  a,nd  Defensively  Martens,  ii.   §289.     As  regards  the 

Armed  Merchantships,   etc.    (1917)  ;  case  of   Captain  Fryatt,  see  below, 

Wehberg,  pp.  66,  256-258,  283-286;  §  181. 

Smith,  The  Destruction  of  Merchaiit-  *  This    follows    indirectly    from 

ships  under  International  Law  (1917),  Article  8  of  Convention  xi. 


ARMED   FORCES    OF   THE    BELLIGERENTS  115 

Convention  xi.  of  the  Second  Peace  Conference  enacted 
the  following  rules  ^ : — 

(1)  Such  members  of  the  crew  as  are  subjects  of  neutral 
States  may  not  be  made  prisoners  of  war. 

(2)  The  captain  and  officers  who  are  subjects  of  neutral 
States  may  only  be  made  prisoners  if  they  refuse  to  give 
a  promise  in  writing  not  to  serve  on  an  enemy  ship  while 
the  war  lasts. 

(3)  The  captain,  officers,  and  such  members  of  the  crew 
as  are  enemy  subjects  may  only  be  made  prisoners  if  they 
refuse  to  give  a  written  promise  not  to  engage,  while  hostih- 
ties  last,  in  any  service  connected  with  the  operations  of  war. 

(4)  The  names  of  all  the  individuals  retaining  their  hberty 
under  parole  must  be  notified  by  the  captor  to  the  enemy, 
who  is  forbidden  knowingly  to  employ  them  in  any  service 
prohibited  by  the  parole. 

However,  the  provision  that  members  of  the  crew 
who  were  enemy  subjects  might  only  be  made  prisoners 
if  they  refused  to  give  parole  was  ifso  facto  modified  by 
the  practice  followed  during  the  World  War,  according 
to  which  all  enemy  civilians  of  military  age  could  be 
prevented  from  returning  home,  and  could  be  interned. 
Accordingly,  all  the  belligerents  interned  the  enemy 
crews  of  captured  enemy  merchant  vessels. 

§  86.  The  pri\^leges  of  members  of  armed  forces  Deserters 
cannot  be  claimed  by  members  of  the  armed  forces  of  ^^aitors 
a  belligerent  who  go  over  to  the  forces  of  the  enemy 
and  are  afterwards  captured  by  the  former.  They  may 
be,  and  always  are,  treated  as  criminals.  And  the 
same  is  valid  with  regard  to  treasonable  subjects  of  a 
beUigerent  who,  without  having  been  members  of  his 
armed  forces,  fight  in  the  armed  forces  of  the  enemy. 
Even  if  they  appear  under  the  protection  of  a  flag  of 
truce,  deserters  and  traitors  may  be  seized  and  punished.^ 

1  See  below,  §  201. 

"  See  below,  §  222 ;  Hall,  §  190 ;  Land  War/are,  §  36. 


116  ON  WAR   IN  GENERAL 


VII 

ENEMY   CHARACTER 

Grotius,  iii.  c.  4,  §§  6,  7 — Bj-nkershoek,  Quaestiones  Juris  puhlici,  i.  c.  3 
m /tic— Hall,  §§  167-175— Lawrence,  §§  151-159— Westlake,  ii.  pp.  163- 
176— Phillimore,  iii.  §§  82-86— Twis.s,  ii.  §§  152-162— Taylor,  §§  468, 
517_Walker,  §§  39-43— Wharton,  iii.  §§  352-353— Wheaton,  §§  324-341 
— Hershey,  Nos.  433-436— Moore,  vii.  §§  1185-1194— Geffcken  in  ITotofin- 
dorff,  iv.  pp.  581-588— Ullmann,  §  192— Nys,  iii.  pp.  70-84— Pradier- 
Fod6re,  viii.  Nos.  3166-3175  — Bonfils,  Nos.  1343-13491— Despagnet, 
Nos.  650-653*— Calvo,  iv.  §§  1932-1952— Fiore,  iii.  Nos.  1432-1436,  and 
Code,  Nos.  1723-1731— Boeck,  Nos.  156-190— Dupuis,  Nos.  92-129,  and 
%  Guerre,  Nos.  59-73 — L^raonon,  pp.  426-467 — Higgins,  p.  593 — Nippold, 

ii.  pp.  40-54— Wehberg,  pp.  178-194— Garner,  i.  §§  144,  155-161,  134- 
135,  121-138 — Scott,  Conferences,  pp.  541-555 — Frankenbach,  Die  Rechta- 
itellung  van  neutralen  Staatsangehorigen  in  kriegfiihrenden  Staaten  (1910) 
— Hirschmann,  Das  intemationale  Priaenrecht  (1912),  §  7 — Baty  in  the 
Journal  of  the  Society  of  Comparative  Legislation,  New  Ser.  ix.  part  i. 
(1908),  pp.  157-166,  and  Westlake,  ibid.,  part  ii.  (1909),  pp.  265-268— 
Baty  in  the  Juridical  Beview,  xxi.  (1909),  pp.  1-11 — Oppenheim  in  the 
Law  Quarterly  Review,  xxv.  (1909),  pp.  372-384 — Visscher,  ihid.,  xxxi. 
(1915),  pp.  289-298. 

On  §  87.  Since   the   belligerents,   for  the  reahsation  of 

Enemj^  the  purpose  of  war,  are  entitled  to  take  many  lands  of 
in  general.  measiLces  against  enemy  persons  and  enemy  property, 
it  must  be  determined  what  persons  and  what  property 
are  vested  with  enemy  character.  Now  it  is,  generally 
speaking,  correct  to  say  that,  whereas  the  subjects  of 
a  beUigerent  and  their  property  bear  enemy  character, 
the  subjects  of  a  neutral  State  and  their  property  do 
not  bear  enemy  character.  This  rule  has,  however, 
important  exceptions.  For  under  certain  circumstances 
and  conditions  enemy  persons  and  the  property  of 
enemy  subjects  may  not  bear,  and,  on  the  other  hand, 
subjects  of  a  neutral  State  and  their  property  may  bear, 
enemy  character.  And  it  is  even  possible  for  a  subject 
of  a  belHgerent  to  bear  for  certain  purposes  enemy 
character  as  between  himself  and  his  home  State. 
The  question  of  enemy  character  is,  however,  to  a 


ENEMY   CHARACTER  117 

great  extent  unsettled,  since  on  many  points  connected 
with  it  no  universally  recognised  rules  of  International 
Law  are  in  existence.  Before  the  World  War,  British 
and  American  courts  had  worked  out  a  body  of  precise 
and  clear  rules,  but  the  practice  of  other  countries,  and 
especially  of  France,  had  followed  different  lines.  The 
Second  Hague  Conference  of  1907  produced  three  articles 
of  minor  importance  on  the  matter  (Articles  16, 17,  and 
18  of  Convention  v.),  which  were  accepted  by  all  the 
signatory  Powers,  except  Great  Britain,  which,  upon 
signing  the  convention,  entered  a  reservation  against 
them.  The  Declaration  of  London  comprised  a  number 
of  rules  which,  apart  from  two  important  points,  offered 
a  common  basis  for  the  practice  of  all  maritime  States.^ 
But  neither  the  Hague  Conference  nor  the  Naval  Con- 
ference of  London  reached  a  compromise  upon  the  old 
controversies  as  to  whether  nationality  exclusively,  or 
domicile  also,  should  determine  the  neutral  or  enemy 
character  of  individuals  and  their  goods,  and  whether 
or  not  neutral  vessels  acquire  enemy  character  by 
embarking  in  time  of  war,  w4th  the  permission  of  the 
enemy,  upon  such  trade  with  the  latter  as  was  closed 
to  them  in  time  of  peace  (rule  of  1756). 

When  the  World  War  broke  out,  these  questions  were 
still  open ;  moreover.  Great  Britain  and  certain  other 
belligerents  had  not  ratified  Hague  Convention  v.,  and 
no  Power  had  ratified  the  Declaration  of  London.  States 
had  opportunity  to  fall  back  upon  their  divergent 
practices,  and  even  these  underwent  far-reaching  changes 
under  the  stress  of  new  circumstances. 

For  the  consideration  oi  enemy  character  in  detail, 
it  is   convenient   to   distinguish   bgtween   individuals, 

^  At  the  first  glance  it  would  seem  of  unneutral  service,  Articles  55  and 

that  only  the  four  articles — 57  to  60  56,  dealing  with  transfer  to  a  neutral 

— of   Chapter    vi.    headed    '  Enemy  flag,  and,  lastly,  Article  63,  relating 

Character '  dealt  wth  the   subject,  to  forcible  resistance  to  the  right  of 

but  a  closer  examination  shows  that  visitation,  were  also  concerned  with 

Article  46,  relating  to  a  certain  kind  enemy  character. 


dividuals. 


118  ON  WAR  m  GENERAL 

corporations,  vessels,  goods,  the  transfer  of  enemy- 
vessels,  and  the  transfer  of  enemy  goods  on  enemy 
vessels. 
Enemy  §  88.  The  general  rule  with  regard  to  individuals  is 
of  In-  that  subjects  of  the  belligerents  bear  enemy  character, 
whereas  subjects  of  neutral  States  do  not.  In  this 
sense  Article  16  of  Convention  v.  stipulated  :  '  The 
nationals  of  a  State  which  is  not  taking  part  in  the  war 
are  considered  to  be  neutral.'  These  neutral  individuals 
can,  however,  lose  their  neutral  character  and  acquire 
enemy  character  in  several  cases,  and  subjects  of  the 
belligerents  can  in  other  cases  lose  their  enemy  char- 
acter : — 

(1)  Since  relations  of  peace  obtain  between  either  of 
the  belhgerents  and  neutral  States,  the  subjects  of  the 
latter  can,  by  way  of  trade  and  otherwise,  render  many 
kinds  of  services  to  either  belligerent  without  thereby 
losing  their  neutral  character.  On  the  other  hand,  if 
they  enter  the  armed  forces  of  a  belHgerent,  or  do 
certain  other  things  in  his  favour,  or  commit  hostile 
acts  against  a  belligerent,  they  acquire  enemy  char- 
acter.^ All  measures  that  are  allowed  during  war 
against  enemy  subjects  are  hkewise  allowed  against  such 
subjects  of  neutral  Powers  as  have  thus  acquired  enemy 
character.  For  instance,  during  the  World  War 
hundreds  of  subjects  of  neutral  States,  who  were  fighting 
in  the  ranks  of  the  belhgerents,  were  captured  and 
retained  as  prisoners  until  the  end  of  the  struggle.  But 
such  individuals  must  not  be  more  severely  treated  than 
enemy  subjects,  and,  in  especial,  no  punitive  measures 
are  allowed  against  them.^ 

Subjects  of  neutral  States  not  inhabiting  the  territory 
of  the  enemy,  or  any  territory  mihtarily  occupied  by 
him,  do  not,  however,  acquire  enemy  character  by 
furnishing   supphes   or   making   loans   to   the   enemy, 

^  Article  1 7  of  Convention  v. 


ENEMY   CHARACTER  119 

provided  the  supplies  do  not  come  from  the  enemy 
territory,  or  any  territory  occupied  by  him.^ 

Article  18(6)  of  Convention  v.  laid  down  a  new  rule  ^ 
that  subjects  of  neutral  States  who  render  services  to 
the  enemy  in  matters  of  police  and  administration, 
likewise  do  not  acquire  enemy  character.  This  stipu- 
lation must,  however,  be  read  with  caution.  It  can 
only  mean  that  such  individuals  do  not  lose  their  neutral 
character  to  a  greater  degree  than  other  subjects  of 
neutral  States  resident  on  enemy  territory ;  it  cannot 
mean  that  they  are  in  every  way  to  be  considered  and 
treated  like  subjects  of  neutral  States  not  residing  on 
enemy  territory. 

The  acts  by  which  subjects  of  neutral  States  lose 
their  neutral,  and  acquire  enemy,  character  need  not 
necessarily  be  committed  after  the  outbreak  of  war. 
They  can,  even  before  the  outbreak  of  war,  identify 
themselves  to  such  a  degree  with  a  foreign  State  that, 
with  the  outbreak  of  war  against  that  State,  enemy 
character  devolves  upon  them  if  so  facto,  unless  they  at 
once  sever  their  connection  with  such  State.  This,  for 
instance,  is  the  case  w^hen  a  foreign  subject,  in  time  of 
peace,  enhsts  in  the  armed  forces  of  a  State  and  con- 
tinues to  serve  after  the  outbreak  of  war. 

(2)  From  the  time  when  International  Law  made  its 
appearance  down  to  our  own,  no  difference  has  been 
made  by  a  belUgerent  between  the  treatment  accorded 
to  subjects  of  the  enemy  and  subjects  of  neutral  States 
inhabiting  the  enemy  country.     Thus  Grotius  ^  teaches 

^  Article  18(a)  of  Convention  v.  country  as  bearing  enemy  character. 

^  Since   Great  Britain  entered   a  Different,  however,  is  Article  18(6), 

reservation  against  Articles  16,  17,  which  created  an  entirely  new  rule, 

and  18  of  Convention  v.  she  is  not  for  nobody  had  pre\"iously  doubted 

bound  by  them.     But  Articles   16,  that  the  members  of  the  police  force 

17,  and  18(a) — not  18(b)  ! — enacted  and   the  administrative   officials   of 

only    such    rules    as    were    always  the    enemy    bore    enemy    character 

customarily  recognised,  unless  Arti-  whether  or  no  they  were  subjects  of 

cle  16  be  interpreted  so  as  to  prevent  the  enemy  State. 
a  belligerent  from  considering  subjects 

of  neutral  States  inhabiting  the  enemy  ^  iii.  c.  4,  §§  6,  7. 


120  ON   WAR   IN   GENERAL 

that  foreigners  must  share  the  fate  of  the  population 
living  on  enemy  territory,  and  Bynkershoek  ^  distinctly 
teaches  that  foreigners  residing  in  enemy  country  bear 
enemy  character.  English  ^  and  American  practice 
assert,  therefore,  that  foreigners,  whether  subjects  of 
the  belligerents  or  of  neutral  States,  acquire  enemy 
character  by  being  domiciled  {i.e.  resident)  in  enemy 
country,  because  they  have  thereby  identified  them- 
selves with  the  enemy  population,  and  contribute,  by 
paying  taxes  and  the  hke,  to  the  support  of  the  enemy 
Government.  For  this  reason,  all  measures  which  may 
legitimately  be  taken  against  the  civil  population  of 
the  enemy  territory,  may  likewise  be  taken  against 
them,  unless  they  withdraw  from  the  country,  or  are 
expelled  therefrom.  It  must,  however,  be  remembered 
that  they  acquire  enemy  character  in  a  sense  and  to  a 
certain  degree  only ;  their  enemy  character  is  not  as 
intensive  as  that  of  enemy  subjects  resident  on  enemy 
territory.  Such  of  them  as  are  subjects  of  neutral 
States  do  not,  therefore,  lose  the  protection  of  their 
home  State  against  arbitrary  treatment  inconsistent 
with  the  laws  of  war  ;  and  such  of  them  as  are  subjects 
of  the  other  belligerent  are  handed  over  to  the  protec- 
tion of  the  embassy  of  a  neutral  Power.  However  that 
may  be,  they  are  not  exempt  from  requisitions  and 
contributions ;  from  the  restrictions  which  an  occupant 
imposes  upon  the  population  in  the  interest  of  the  safety 
of  his  troops  and  his  mihtary  operations  ;  from  punish- 
ments for  hostile  acts  committed  against  the  occupant ; 
or  from  being  taken  into  captivity,  if  exceptionally 
necessary. 

This  treatment  of  foreigners  resident  on  occupied 
enemy  territory  is  generally  recognised  as  legitimate 

*  Quaettiones  Juris  publici,  i.  c.  3       Rob.  322 ;  The  Johanna  Emilie,  other- 
in  fine.  wisQ  Emilia,  (1854)  Spinks  12;    The 

■«  See   The  Harmony,  (1800)  2  C.        Baltica,  (1857)  11  Moore  P.  C.  141, 


ENEMY   CHARACTER  121 

by  theory  ^  and  practice.  The  proposal  of  Germany, 
made  at  the  Second  Hague  Conference,  to  agree  upon 
rules  which  would  have  stipulated  a  more  favourable 
treatment  for  subjects  of  neutral  States  resident  on 
occupied  enemy  territory  was,  therefore,  rejected.  Not 
even  France  supported  the  German  proposals,  although, 
according  to  the  French  conception  then  prevaihng,^ 
foreigners  residing  in  enemy  country  did  not  acquire 
enemy  character,  and  the  German  proposals  were  only 
a  logical  consequence  of  it.^ 

(3)  Since  enemy  subjects  who  reside  in  neutral 
countries,  or  are  allowed  to  remain  resident  on  the 
territory  of  the  other  belligerent,  have  to  a  great  extent 
identified  themselves  with  the  local  population  and  are 
not  under  the  territorial  supremacy  of  the  enemy,  they 
lost  their  enemy  character  according  to  the  Enghsh 
and  American  practice  which  prevailed  before  the 
World  War,'*  although  according  to  French  practice 
they  did  not,  a  difference  which  bore  upon  many  points, 
especially  upon  the  character  of  goods.  ^ 

During  the  World  War,  however,  Great  Britain 
abandoned  her  former  practice  in  many  respects.  As 
regards  enemy  subjects  resident  in  neutral  States,  the 

^  See  Albrecht,  Bequisitionen  von  siding  in  neutral  countries  do  not  lose 

neutralem      Privateigenthum,       etc.  their   enemy    character.      But    this 

(1912),  pp.   13-15,  and  Hirsch,   Die  conception  of  enemy  character  had 

rechtliche   Stelluny   der   Angehorigen  developed,  not  with  regard   to  the 

neutrcUer  Staaten  (1914),  pp.   80-84.  treatment    of    foreigners    whom    an 

See  also  below,  §  170.  occupant  finds  resident  on  occupied 

■  See  Garner,  i.  §  144,  who  points  enemy  territory,  but  with  regard  to 

out   that    during    the    World    W^ar  the  exercise  of  the  right  of  capture  of 

French    trading     with    the    enemy  enemy  vessels  and  goods  in  warfare 

legislation   abandoned   this   concep-  at  sea.     France  did  not  attempt  to 

tion.  follow  out  its  logical  consequences 

*  This  French  conception  of  enemy  by  meting  out  to  foreigners  resident 

character  dated  from  the  judgment  on  occupied  territory  treatment  dif- 

of  the  Con^eil  des  Prises  in  the  case  ferent  from  that  of  enemy  subjects 

of  Le  Hardy  contre  La   Voltigeante  resident  there. 

(1802)  — see  1  Pistoye  et  Duverdy,  *  See    The  Postilion,   (1779)    Hay 

321 — which  laid  down  the  rule  that  and  Harriot  245 ;  The  Danotia,(\^Q2) 

neutral  subjects  residing  in  enemy  4  C.  Rob.  255  n.  ;   The  Venus,  (1814) 

country  do   not   lose   their   neutral  8  Cranch  253. 

character,   and   enemy   subjects  re-  *  See  below,  §  90. 


122  ON  WAK   IN  GENERAL 

Trading  with  the  Enemy  (Extension  of  Powers)  Act, 
1915,^  authorised  His  Majesty  by  proclamation  to 
prohibit  all  persons  in  the  United  Kingdom  from  trading 
with  any  persons  in  foreign  countries  whose  enemy 
nationality  or  enemy  association  made  such  prohibition 
expedient,  and  constituted  such  trading  trading  with  the 
enemy.  Statutory  hsts  (so-called  '  black  lists  ')  were 
issued  under  this  Act,  which  proscribed  a  large  number  of 
persons  and  firms  in  various  States  then  neutral.^  But 
trade  with  enemy  subjects  resident  in  neutral  States 
whose  names  were  not  on  these  lists  was  not  illegal. 
When  the  United  States  entered  the  war,  she  also 
adopted  a  pohcy  similar  to  the  new  British  pohcy.^  As 
regards  enemy  subjects  resident  in  Great  Britain,  orders 
made  under  the  Aliens  Restriction  Act,  1914,^  placed 
them  under  special  restrictions ;  the  Trading  with  the 
Enemy  (Amendment)  Act,  1916,^  and  later  acts,  singled 
out  their  property  for  exceptionally  disadvantageous 
treatment  with  a  view  to  ehminating  their  commercial 
influence ;  ^  and  the  Aliens  Restriction  (Amendment) 
Act,  1919,'  saddled  them  with  disabihties  not  Hmited  to 
the  duration  of  the  war.  American  legislation  was  not 
dissimilar.^  At  the  end  of  the  war  the  victorious 
Powers  reserved  the  general  right  to  retain  and  liquidate 
all  property  of  enemy  subj  ects  then  within  their  territory.  ^ 
Enemy         §  88a.  There  are  no  rules  of  International  Law  to 

Character    -,    .  ■  i     ^i  •• 

of  Cor-      determine    whether    a    corporation    possesses    enemy 

porations.  character,  and  the  question  was  much  debated  at  the 

outbreak  of  the  World  War.     The  rapid  development 

1  5  &  6  Geo.  V.  e.  98.  *  4  &  5  Geo.  v.  c.  12. 

^  As  to  the  resulting  controversy  *  5  &  6  Geo.  v.  c.  105. 

with  the  United  States,    see  Pari.  *  For   details   see  M'Nair,   Legal 

Papers,   Misc.,    No.    11   (1916),   Cd.  .E/ec?«  o/ fFar  (1920),  and  an  article 

8225,  and  No.   36  (1916),  Cd.   8353,  in  the  Journal  of  Comparative  Legis- 

and  Garner,  i.  §§  156-160.  lation,  3rd  Ser.  ii.  (1920),  pp.  269-283. 

*  See  the  American  Trading  with  '  9  &  10  Geo.  v.  c.  92. 

the   Enemy  Act  of    1917,  §  2(c),  in  »  Garner,  i.  §§72-74. 

^.  J.,  xii.  (1918),  Supplement,  p.  27  ;  *  See,    for    example.    Treaty    of 

Garner,  i.  §§  144,  161.  Peace  with  Germany,  Article  297. 


ENEMY   CHARACTER  123 

of  joint  stock  enterprise  had  taken  little  account  of 
warlike  conditions,  and  the  principle  of  company  law, 
that  a  corporation  is  an  entity  distinct  from  its  members, 
had  not  yet  come  into  serious  conflict  with  them. 

British  opinion  was  generally  agreed,  on  the  authority 
of  Jaiison  V.  Driejontein  Consolidated  Mines ^^  that  a 
corporation  incorporated  in  an  enemy  country  had 
enemy  character.  But  it  was  doubtful  whether  a 
corporation  carrying  on  business  in  an  enemy  country, 
but  not  incorporated  there,  also  possessed  enemy  char- 
acter, and,  further,  whether  a  corporation  neither 
incorporated  nor  carrying  on  business  in  an  enemy 
country  could  under  any  circumstances  acquire  that 
character.  The  first  of  these  questions  at  once  arose 
in  connection  with  trading  with  the  enemy,^  and  early 
proclamations,  after  some  confusion  of  thought,  settled 
down  to  the  view  that  enemy  character  attached  to 
companies  '  wherever  incorporated,  carrying  on  busi- 
ness in  an  enemy  country.'  ^  The  second  question  was 
carried  to  the  House  of  Lords  in  the  Daimler  case,^ 
where  it  was  laid  down  that  a  company  assumes  enemy 
character  *  if  its  agents  or  the  persons  in  de  facto  control 
of  its  afiairs  are  resident  in  an  enemy  country,  or, 
wherever  resident,  are  adhering  to  the  enemy  or  taking 
instructions  from  or  acting  under  the  control  of  enemies. 
.  .  .  The  character  of  individual  shareholders  cannot 
of  itself  affect  the  character  of  the  company."  ^ 

The  French  courts,  confronted  with  the  same  diffi- 
culty, held  that,  in  order  to  determine  enemj'  character, 

^  [1902]  A.  C.  484,  at  p.  497.  Court  had  reached  a  different  con- 

*  See  below,  §  101.  elusion.    But  that  decision  was  prior 
^  See  M'Nair,  L^gal  Ejects  of  War       to  the  decision  of  the  House  of  Lords 

(1920),  p.  122,  and  the  Proclamation  in  the  Daimler  case.     For  a  detailed 

of  September  14,  1914.  discussion     of     the     nationality    of 

*  Daimler  Co.  Ltd.  v.  Continental  corporations,  see  M'Nair,  op.  cit.. 
Tyre  and  Ruhher  (Great  Britain)  Co.  Schuster  in  the  Grotiua  Society,  ii. 
Ltd.,  [1916]  2  A.  C.  307.  pp.    57-85,  and  the  other  literature 

*  At  p.  345.  In  The  Poona,  (1915)  cited  above,  vol.  i.  §  293  n.  See 
1   B.  and  C.   P.   C.   275,   the   Prize  also  The  Po^zeafA,  [1916]  P..117. 


124  ON  WAR  IN  GENERAL 

they  had  the  right  '  to  go  to  the  bottom  of  things  and 
ascertain  whether  the  company  was  a  French  company 
in  reahty  or  such  only  in  appearance/  ^ 

American  practice,  on  the  other  hand,  while  also 
attaching  enemy  character  to  companies  incorporated, 
or  carrying  on  business,  in  an  enemy  country,^  did  not 
attribute  such  character  to  a  company  neither  incor- 
porated nor  doing  business  there.  Its  courts  '  are 
entirely  wedded  to  the  doctrine  that  the  corporators  of 
a  corporation  are  conclusively  presumed  to  be  citizens 
of  the  same  State  as  the  corporation/  ^ 
Enemy  §  89.  The  general  rule  before  the  World  War  with 
of  Vessek.  regard  to  vessels  was  that  their  character  is  determined 
by  their  flag.  This  is  still  the  test  in  the  case  of  a 
vessel  saihng  under  the  enemy  flag.^  Whatever  may 
be  the  nationahty  of  her  owner — whether  a  subject  of  a 
neutral  State,  or  of  either  belHgerent — she  bears  enemy 
character.  But  the  converse,  namely  that  an  enemy- 
owned  vessel  which  sails  under  a  neutral  flag  no  more 
bears  enemy  character  than  the  vessel  of  the  subject  of  a 
neutral  State  saihng  under  the  flag  of  another  neutral 
State,  did  not  secure  acceptance  during  the  World  War 
by  the  Prize  Courts  of  belHgerents.  Even  before  the 
World  War,  the  flag  of  a  neutral  State  was  the  deciding 
factor  only  when  the  vessel  was  legitimately  saihng 
under  it.  Should  it  be  found  that  a  vessel  saihng  under 
the  flag  of  a  certain  neutral  State  had,  according  to  the 
Municipal  Law  of  such  State,  no  right  to  fly  the  flag  she 

^  Socidtd  Conserve  Lenzhourg,  cited  non-littoral  State  without  a  maritime 

by  Gamer,  i.  §  153.    Journal  du  Droit  flag,  and  that  the  vessel  is,  therefore, 

international   (Clunet),    xlii.    (1915),  compelled  to  fly  the  flag  of  a  mari- 

p.  1164.  time  State:    if   the  flag  the  vessel 

"  See  §  2a  of  the  American  Trad-  flies   be   the   enemy  flag,   she  bears 

ing  with  the  Enemy  Act,  1917.  enemy  character.      Nor,  if  a  vessel 

*  Fritz-Schultz  Co.  v.  Raimes  Co.,  flies  an  enemy  flag,  will  she  escape 
(1917)  164  N.Y.S.  454,  cited  by  condemnation  by  being  mortgaged  to 
Garner,  i.  §  154.  See  also  Stump/  subjects  of  a  non-enemy  State.  See 
V.  Scheiber  Brewing  Co.,  (1917)  242  The  Marie  Glaeser,  (1914)  1  B.  and 
Fed.  80,  also  cited  by  Garner.  C.   P.  C.   38;  [1914]  P.    218.     The 

*  It  makes  no  difference  that  the  Prize  Court  disregards  mortgages 
owner  be  the  subject  of  a  neutral  and  liens  on  enemy  vessels. 


ENEMY   CHARACTER  125 

showed,  the  real  character  of  the  vessel  had  to  be  deter- 
mined in  order  to  decide  whether  or  no  she  bore  enemy 
character.     Moreover,  there  were  exceptions  to  the  rule. 

(1)  As  was  provided  by  Article  46  of  the  unratified 
Declaration  of  London,^  a  neutral  merchantman  acquired 
enemy  character  by  taking  a  direct  part  in  the  hostihties,^ 
by  being  in  the  exclusive  employment  of  the  enemy 
Government,  and  by  being  at  the  time  exclusively  in- 
tended either  for  the  transport  of  troops  or  for  the 
transmission  of  intelhgence  for  the  enemy.  The  act 
by  which  a  neutral  vessel  acquired  enemy  character 
need  not  necessarily  have  been  committed  after  the 
outbreak  of  war,  for  she  could,  even  before  the  outbreak 
of  war,  to  such  a  degree  identify  herself  with  a  foreign 
State  that,  with,  the  outbreak  of  war  against  such  State, 
enemy  character  devolved  upon  her  ipso  facto,  unless  she 
severed  her  connection  with  it.  This  was,  for  instance, 
the  position  of  a  foreign  merchantman  which  in  time 
of  peace  had  been  hired  by  a  State  for  the  transport  of 
troops  or  of  war  material,  and  continued  to  carry  out 
her  contract  in  spite  of  the  outbreak  of  war.^ 

(2)  As  was  provided  by  Article  63  of  the  unratified 
declaration,  a  neutral  merchantman  acquired  enemy 
character  ipso  facto  by  forcibly  resisting  the  legitimate 
exercise  of  the  right  of  visit  and  capture.^ 

*  See  below,  §  410.  fleet,  stopped,  visited,  and  ordered 

*  Wliether  the  crew  of  a  neutral  to  follow  a  Japanese  cruiser.  Al- 
ship  taking  a  direct  part  in  hostilities  though  the  British  captain  was 
can  only  be  made  prisoners  of  war,  readj'  to  comply,  the  Chinese  on 
or  whether  they  can  be  punished  as  boaixl  would  not  allow  it.  There- 
war  criminals,  does  not  seem  to  be  upon  the  Japanese  opened  lire  and 
settled.  Schramm,  J)a.^  Prisenrecht  sank  the  vessel.  As  then  hostilities 
(1913),  p.  358,  adopts  the  second  could  be  commenced  without  a 
alternative.  pre%"ious    declaration    of    war,     the 

^  In  the  case  of    The  Koic-shing,  action  of  the  Japanese  was  in  accord - 

which  has   lost   its   former  import-  ance  with  the  rules  of  International 

anee,  a  British  ship,  just  before  the  Law.     See  Hall,  §  168*  ;  Takahashi, 

outbreakof  the  Chino- Japanese  War,  Caaea  on  iTttematicmal  Law  during 

was   hired   by  the  Chinese  Govern-  the  Chino-Japanese   War  (1899),  pp. 

ment  to  transport  Chinese  soldiers  27-51  ;    Holland,   Studie*,   pp.    126- 

and  ammunition  to  Korea.     She  was  128. 

met  in  Koreanwaters  by  the  Japanese  *  See  below,  §  422. 


126  ON   WAR   IN  GENERAL 

(3)  According  to  British  practice — adopted  by  America 
and  Japan  ^ — neutral  merchantmen  likewise  acquired 
enemy  character  if  they  violated  the  so-called  rule  of 
1756,^  by  engaging  in  time  of  war  in  a  trade  which  the 
enemy  prior  to  the  war  reserved  exclusively  for  merchant- 
men sailing  under  his  own  flag.  The  unratified  Declara- 
tion of  London  neither  rejected  nor  accepted  this  rule 
of  1756,  for  Article  57  stipulated  expressly  that  this 
case  remained  unsettled. 

These  exceptions  were  admitted  before  the  World 
War,  and  are  still  vahd.  But,  if  the  Declaration  of 
London  had  been  ratified,  no  exception  to  the  rule  laid 
down  in  its  Article  57  (that  subject  to  the  provisions 
respecting  transfer  to  another  flag,  the  character  of  a 
vessel  was  to  be  determined  by  the  flag  she  was  entitled 
to  fly)  would  have  been  recognised  on  the  ground  that  a 
vessel,  though  lawfully  flying  a  neutral  flag,  was  owned 
wholly  or  partly  by  a  person  with  enemy  character. 

No  doubt  the  British  practice  formerly  prevaiHng 
was  said  to  recognise  such  an  exception  where  a  vessel 
sailing  under  a  neutral  flag  was  in  part  owned  by  an 
enemy  subj  ect.  ^  Thus  in  The  Industrie,  *  Dr.  Lushington 
said  :  '  When  the  vessel  is  sailing  under  a  neutral  flag, 
the  captors  may  show  that  all  the  property  is  not 
neutral,  but  part  of  it  belongs  to  an  enemy,  and  in  that 
case  you  divide  it,  and  condemn  the  part  which  is  hostile 
and  not  the  part  which  is  neutral.'  This  obiter  dictum 
was  all  the  more  remarkable  as  in  an  earher  case  ^  it 
had  been  held  that  ships  had  in  toto  the  character  with 
which  they  were  invested  by  their  flag  '  to  the  exclusion 
of  any  claims  of  interest  that  persons  living  in  neutral 

1  See  The  Montara  in  Takahashi,  pp.  109-192. 

p.  633,  and  Hurst,  ii.   p.  403.      On  ^  See    Hall,    §  169,  p.   524,  n.  2 ; 

the  other  hand,  the  Russian  Supreme  Holland,    Prize  Law,   §  19,  No.  3; 

Prize  Court  rejected  the  rule  of  1756  Westlake,  ii.  p.  170. 

in  The  Thea  ;  see  Hurst,  i.  p.  96.  *  (1854)  Spinks  54. 

*  See  below,  §  289,  and  Higgins,  ^  See   The  Vrow  Elizabeth,  (1803) 

War  and  the  Private  Citizen  (1912),  5  C.  Rob.  2,  at  p.  4. 


ENEMY   CHARACTER  127 

countries  may  actually  have  in  them.'  For  this  reason 
the  shares  of  a  neutral  in  an  enemy  ship  were  condemned.^ 

However,  Article  57  of  the  um-atified  Declaration  of 
London  was  put  into  force  ^  by  Great  Britain  at  the 
outbreak  of  war,  and  this  precluded  any  inquiry  into 
the  character  of  the  owners  of  the  vessel. 

France  also  put  Article  57  into  force  ;  but  the  plans 
adopted  by  Germany  for  buying  neutral  vessels  and 
saihng  them  under  a  neutral  flag  ^  soon  convinced  both 
Great  Britain  and  France  that  it  must  be  abandoned. 
Accordingly,  by  Order  in  Council  dated  October  20, 
1915,  Great  Britain  abrogated  this  article,  and  declared 
that  for  the  future  British  Prize  Courts  would  follow 
the  former  British  practice.'*  France  made  a  similar 
change  of  pohcy.^  The  British  Prize  Court  considered 
the  character  of  a  German-owned  vessel  flying  a  British 
flag  in  the  case  of  The  St.  Tiidno,^  and  a  neutral  flag  in 
the  case  of  The  Hamborn,"^  and  it  was  held  that  '  it  is  a 
settled  rule  of  prize  law  based  on  the  principles  upon 
which  prize  courts  act,  that  they  will  penetrate  through 
and  beyond  forms  and  technicahties  to  the  facts  and 
realities.     This  .  .  .  means   that  .  .  .  the   ow^ners   are 

^  See    also     The    Primus,    (1854)  Wagner,    an    American    subject    of 

Spinks  48.  German  origin,  under  which  Wagner 

"  As    to    the    legal    operation   in  was  to  float  an  American  company 

British  Prize  Law  of  the  Order  in  to  sail   the    vessels  and    secure  for 

Council  of  August  20,  1914  {London  them    American    registry.     Almost 

G^azftte,  August  21,  1914),  which  put  as   soon   as  American  registry  was 

the  Declaration  of  London  into  force  obtained,    however,    Great    Britain 

with  certain  modifications,  see   The  and  France  (see  above)   abandoned 

Proton,   (1918)    3  B.    and  C.   P.   C.  Article   57    of    the    Declaration    of 

125.  London  and  several  of  the  ships  were 

*  See  the  cases  of  the  Wagner  ships  captured   and  condemned   as   being 

(American    Transatlantic  Company,  German-owned,    though    flj'ing    the 

oioners  of  the  steamships   Kankakee,  American  flag. 

Hocking  and  Genesee  V.  His  Majesty's  4  ggg  Garner   i.  §134. 

Procurator-Oeneral,  (1917)  reported  ' 

on   appeal    in    The    Times   of    July  *  See  Garner,  itid.,  who  cites  the 

24,  1920),  and  Garner,  i.  §  135.     A  French  case  of  The  Willkommen. 

io,T*''/?J''''r,/''  ^^®  '^'''*^'"  °^  '  (1916)  2  B.  and  C.  P.  C.  273; 

1914  and   the   touowing   year  pur-       riQi«]  p  9qi 

chased  eleven  neutral  ships  through 

neutral  agents,  and  made  an  anange-  '  (1917)    3   B.    and  C.   P.   G.    80, 

ment    through    these    agents    with       379  ;  [1918]  P.  19  ;  [1919]  A.C.  993. 


128  ON  WAR  IN  GENERAL 

bound  by  the  flag  which  they  have  chosen  to  adopt, 
but  captors  as  against  them  are  not  so  bound/  ^ 

The  following  rules  apply  to  all  neutral  vessels  which 
have  acquired  enemy  character  : — (a)  all  enemy  goods 
on  board  may  be  confiscated,  even  if,  when  they  were 
first  shipped,  the  vessels  were  neutral ;  (b)  all  goods  on 
board  will  be  presumed  to  be  enemy  goods,  and  the 
owners  of  neutral  goods  will  have  to  prove  their  neutral 
character  ;  (c)  the  rules  concerning  the  sinking  of  neutral 
prizes  do  not  apply,  because  these  vessels  are  now  enemy 
vessels. 
Enemy         §  90.  It  is  an  old  customary  rule  ^  that  all  goods  found 

Character  ■,  -,  i         ,  i    x       i 

of  Goods,  on  board  an  enemy  merchantman  are  presumed  to  be 
enemy  goods  unless  the  contrary  is  proved  by  neutral 
owners.  It  is,  further,  generally  recognised  that  the 
enemy  character  of  goods  depends  upon  the  enemy 
character  of  their  owners.  As,  however,  no  universally 
recognised  rules  exist  as  to  the  enemy  character  of 
individuals,  there  are  no  universally  recognised  rules 
as  to  the  enemy  character  of  goods.  The  unratified 
Declaration  of  London  did  not  purport  to  lay  down 
any,  because  the  Powers  could  not  reach  agreement. 

(1)  Since,  according  to  British  and  American  practice, 
domicile  in  enemy  country  makes  an  individual  bear 
enemy  character,^  all  goods  belonging  *  to  individuals 
domiciled  in  enemy  country  are  enemy  goods,  and  all 

1  3  B.  and  C.  P.  C.  80,  at  p.  83.  (Amendment)  Act,  1914  (5.  Geo.  v. 

On  the  case  of  The  Presidente  Mitre,  c.    12),    and    the    definition    in    the 

see  Garner,  i.  §  135.  American  Trading  with  the  Enemy 

-  See  The  Roland,  (1915)  1  B.  and  Act    of    1917    cited   by   Gamer,   i. 

C.  P.  C.  188,  and  the  French  case  of  g  144. 

TAePor<o,  (1915), /e.C.xxiii.  (1916),  *  The    British    Prize   Court  does 

Jurisprudence,  p.  66,  and  Gamer,  i.  not  recognise  the  claims  of  a  pledgee, 

§  113.      The  rule  was  embodied  in  but  has  regard  to  the  legal  ownership 

the  unratified  Declaration  of  London.  of  the  goods.      The  Odessa,  (1914)  1 

^  See,  for  example,  the  definition  B.  and  C.  P.  C.   163,  554 ;   and  cp. 

of  'enemy'  as  'persons  and  bodies  The  Ningchow,  (1915)  1  B.  and  C.  P. 

of   persons  resident  or  carrying  on  C.    288 ;    [1916]  P.    221,  where  the 

business  in  any  country  %vith  which  pledgors    had    lost    their    right   to 

His  Majesty  is  for  the  time  being  at  redeem,  and  had  thereby  ceased  to 

War'  in  the  Trading  with  the  Enemy  be  owners. 


ENEMY   CHARACTER  129 

goods  belonging  to  individuals  not  resident  in  enemy 
country  are  not,  as  a  rule,  enemy  goods.  For  this 
reason,  goods  belonging  to  enemy  subjects  residing  in 
neutral  countries  ^  do  not,  but  goods  belonging  to 
subjects  of  neutral  States  residing  in  enemy  country  ^ 
do  bear  enemy  character,  although  they  may  be  the 
goods  of  a  foreign  consul  appointed  and  residing  in 
enemy  coimtry.^  Further,  the  goods  of  subjects  of  one 
belligerent  domiciled  on  the  territory  of  the  other  and 
allowed  to  remain  there  after  the  outbreak  of  war, 
acquire  enemy  character  in  the  eyes  of  the  former,  but 
lose  it  (for  the  purposes  of  prize  law)  in  the  eyes  of  the 
latter.*  Again,  the  produce  of  an  estate  on  enemy 
territory  belonging  to  an  absent  neutral  subject  bears 
enemy  character,  for  '  nothing  ^  can  be  more  decided 
and  fixed  than  the  principle  .  .  .  that  the  possession  of 
the  soil  does  impress  upon  the  owner  the  character  of 
the  coimtry,  as  far  as  the  produce  of  that  plantation  is 
concerned  .  .  ,  whatever  the  local  residence  of  the 
owner  may  be.'  Further,  the  property  of  a  house 
of  trade  estabhshed  in  an  enemy  country  by  a  neutral 
subject  resident  elsewhere  Ukewise  bears  enemy  char- 
acter, because  the  owner  has  a  '  commercial  domicile  ' 
in  enemy  comitry.^  Lastly,  the  enemy  character  of 
property   of    an   enemy   subject   domiciled  in   enemy 

^  The  Postilion,   (1779)  Hay  and  *  From     the     judgment     of     Sir 

Marriot,  245  ;    The  Danous,  (1802)  4  William   Scott   in  the  case  of   The 

C.    Rob.   255  n.     But  if    an   enemy  Phcenix,   (1803)   5  C.   Rob.  41  ;    see 

subject     with    a    neutral    domicile  also   The  Asturian,   (1916)  2  B.  and 

abandons  it  before  the  capture  of  his  C.  P.  C.  202  ;  [1916]  P.  150  ;  Thirty 

goods,  these  goods  then  bear  enemy  Hogsheads  of  Sugar -v.  Boyle  (Bentzen 

character;    The  Flamengo,  (1915)  1  v.  Boyle),  (isio)  9  Cranch  191. 
B.  and  C.  P.  C.  509.     Goods  belong- 
ing to  an  enemy  firm  in  a  neutral  *  The    Anglo-Mexican    and     The 

country  where  foreigners  are  exterri-  Lutzow,  (1917)  3  B.  and  C.  P.  C.  24, 

torial    (such  as  China)  bear   enemy  37.     The  Judicial  Committee  of  the 

character ;     The  Eumaeus,   (1915)   1  Privy  Council,  in  reversing  the  de- 

B.  and  C.  P.  C.  605.  eisions  of  the  courts  below,  laid  down 

*  The    Baltica,    (1857)    H    Moore  the  limit  of  this  doctrine.     See  also 
P.C.  141.  the  old  cases  of  The  Portland,  (1800) 

*  The  Indian  Chief,  (1801)  3  C.  3  C.  Rob.  41  ;    The  Jonge  Klassina, 
Rob.  12.  (1803)  5  C.  Rob.  297  :    The  Freund- 

*  The  Venus,  (1814)  8  Cranch  253.  scha/t,  (1819)  4  Wheaton  105. 

VOL.   II.  I 


130  ON  WAR   IN  GENERAL 

territory  is  unaffected  by  the  fact  that  he  has  a  house 
of  trade  in  a  neutral  State.^ 

(2)  On  the  other  hand,  according  to  French  practice 
prior  to  the  World  War,  the  nationahty  of  the  owner 
of  the  goods  was  exclusively  the  deciding  factor,  and 
it  did  not  matter  where  he  resided.  Hence  only  such 
goods  on  enemy  merchantmen  bore  enemy  character 
as  belonged  to  subjects  of  the  enemy,  whether  they 
were  residing  on  enemy  or  neutral  territory ;  and  all 
such  goods  on  enemy  merchantmen  as  belonged  to 
subjects  of  neutral  States  did  not  bear  enemy  character, 
whether  those  subjects  resided  on  neutral  or  enemy 
country.- 

During  the  Turco-Itahan  War,  the  Itahan  courts 
adopted  the  French  practice.  But  the  exigencies  of 
the  World  War^  compelled  France  herself  to  adopt  a 
different  policy. 
Transfer  §  91.  The  qucstion  of  the  transfer  *  of  enemy  vessels 
of  Enemy  ^^  subjccts  of  ueutral  Statcs,  either  shortly  before  or 
during  war,  forms  part  of  the  larger  question  of  enemy 
character,  for  the  point  to  be  decided  is  whether 
such  transfer  ^  divests  these  vessels  of  their  enemy 
character.  It  is  obvious  that,  if  it  does,  owners  of 
enemy  merchantmen  can  evade  the  danger  of  having 
their  property  seized  and  confiscated  by  selHng  their 
vessels  to  subjects  of  neutral  States.  Before  the  Naval 
Conference  of  London  of  1908-1909,  the  maritime  Powers 
had  not  agreed  upon  common  rules  concerning  this 
subject.     According  to  French  ®  practice  no  transfer  of 

^  The  Clan  Grant,  (1915)  1  B.  and  *  This  subject  is  fully  discussed  by 

C.  P.  C.  272.  Garner,  i.  §§  121-138. 

^  See  the  French  cases  of  Xe/fardy  ,  g^^  Holland,  Prize  Law,  §  19; 

T    '  n^f.1     '^''T  <^^°f  ^T^"^  i;"  Hall,  §  171  ;   Twiss,  ii.  §§  162-163  ; 

Fa^x  (1803)   1   Pistoye   et  pu^erdy  phim^ore.  iii.   §486;    Boeck,   Nos. 

321  and  ff6;  ,^«/««"  (/.^'O  ;   ,^^  178-180;    Bonfils,  Nos.   1344-1349^ 

Xtcolaus(lHn):,   LeThaba(im);  ^       j    '^os.  117-129,   and  Guerre, 

Le   Laura-Loutae   (1871);    Barboux  -vj^  ao  an 

101,  108,  116,  119.  ^°'-  ^^"*'^- 

'  See  Coquet  in  E.G.,  xxi.  (1914),  *  See  Dupuis,  No.  97  ;   Garner,  i. 

pp.  253-258.  §§  126-127. 


ENEMY   CHARACTER  131 

enemy  vessels  to  neutrals  after  the  outbreak  of  war  could 
be  recognised,  and  a  vessel  thus  transferred  retained 
enemy  character ;  but  any  legitimate  transfer  anterior 
to  the  outbreak  of  war  did  give  neutral  character 
to  a  vessel.  According  to  British  and  American  prac- 
tice/ on  the  other  hand,  enemy  vessels  could  be  trans- 
ferred to  a  neutral  flag,  before  or  after  the  outbreak  of 
war,  and  lose  thereby  their  enemy  character,  provided 
that  the  transfer  took  place  bonafide,'^  was  not  effected 
either  in  a  blockaded  port  ^  or  while  the  vessel  was  in 
transitu,'^  and  the  vendor  did  not  retain  an  interest  in 
the  vessel,  or  any  right  to  recover  or  repurchase  the 
vessel  after  the  war.^ 

Clear  and  decisive  rules  concerning  the  transfer  of 
enemy  vessels,  which  distinguished  between  transfer  to  a 
neutral  flag  before  and  after  the  outbreak  of  hostihties, 
were  laid  down  in  the  unratified  Declaration  of  London.^ 

(1)  According  to  Article  55  the  transfer  of  an  enemy 
vessel  to  a  neutral  flag,  if  effected  before  the  outbreak  of 
hostihties,  was  to  be  valid,  unless  the  captor  was  able  to 
prove  that  it  was  made  in  order  to  avoid  capture.  How- 
ever, if  the  bill  of  sale  was  not  on  board,  and  the  transfer 
was  effected  less  than  sixty  days  before  the  outbreak  of 
hostihties,  it  was  to  be  presumed  to  be  void,  unless  the 
vessel  could  prove  that  it  was  not  effected  in  order  to  avoid 
capture.  To  provide  commerce  with  a  guarantee  that  a 
transfer  should  not  easily  be  treated  as  void  on  the  ground 
that  it  was  effected  to  evade  capture,  it  was  stipulated  that, 
if  the  transfer  was  effected  more  than  thirty  days  before 
the  outbreak  of  hostihties,  there  was  to  be  an  absolute 

^  Garner,  i.  §§  127-128.  new  owner  takes  possession  of  her, 

*  The  Vigilantia,  (1798)  1  C.  Rob.  the  voyage  of  the  vessel  is  considered 
1  ;  The  Baltica,  (1857)  H  Moore  P.C.  to  have  terminated.  The  Vrow  Mar- 
141;  The  Benito  Estenger,  {\^'d%)'^lQ  garetha,  (1799)  1  C.  Rob.  336;  The 
U.  S.  568.  Jan  Frederick,  (1804)  5  C.  Rob.  128. 

*  The  General  Hamilton,  (1805)  6  *  The  Sechs  Geschwistem,  (1801)  4 
C.  Rob.  61.  C.  Rob.  100;  The  Jemmy,  (1801)  4  C. 

*  The  moment  a  vessel  transferred  Rob.  31. 

in  transitu  reaches  a  port  where  the  ®  Garner,  i.  §§  129-130. 


132  ON  WAR  IN  GENERAL 

presumption  of  its  validity,  provided  that  it  was  uncon- 
ditional, complete,  and  in  conformity  mth  the  laws  of  the 
countries  concerned,  and  that  neither  the  control  of,  nor 
the  profits  arising  from,  the  employment  of  the  vessel 
remained  in  the  same  hands  as  before  the  transfer.  But 
even  in  this  case  a  vessel  was  to  be  suspect  if  the  transfer 
took  place  less  than  sixty  days  before  the  outbreak  of 
hostilities,  and  her  bill  of  sale  was  not  on  board.  Hence 
she  might  be  seized  and  brought  into  a  port  for  investiga- 
tion by  a  prize  court,  and  could  not  claim  damages  for 
the  capture,  even  if  the  court  released  her. 

(2)  According  to  Article  56,  the  transfer  of  an  enemy 
vessel  to  a  neutral  flag  ajter  the  outbreak  of  hostilities  was 
to  be  void  unless  the  owner  could  prove  that  the  transfer 
was  not  made  in  order  to  avoid  capture.  Moreover,  there 
was  to  be  an  irrebuttable  presumption  that  the  transfer 
was  void,  if  it  had  been  made  in  a  blockaded  port,  or  while 
the  vessel  was  in  transitu,  or  if  a  right  to  repurchase  or  re- 
cover the  vessel  was  reserved  to  the  vendor,  or  the  require- 
ments of  the  Municipal  Law  governing  the  right  to  fly  the 
flag  under  which  the  vessel  was  sailing  had  not  been  fulfilled. 

The  Italian  courts  acted  upon  the  articles  of  the  un- 
ratified declaration  during  the  Turco-Italian  War  and 
condemned  the  two  sailing  vessels  Vasilios  and  AgJiios 
Gorghios,  originally  Turkish,  but  after  the  outbreak  of 
war  sold  to  a  Greek  subject,  and  registered  under  the 
Greek  flag.^ 

Again,  at  the  outbreak  of  the  World  War,  Great 
Britain,  France,  and  Russia  determined  to  give  effect 
to  these  articles,^  and  the  important  case  of  The  Dacia 
was  decided  in  accordance  with  them  by  the  French 
Prize  Court.     The  Dacia  was  purchased  after  the  out- 

^  See  Garner,  i.  §  129  n.  and  Germany,  see  The  Tommi,  (1914) 

1  B.  and  C,  P.  C.  IG;  [1914]  P.  251. 

*  For    a   British   case   where    an  See  also  the  Canadian  case  of   The 

attempt  had  been  made  to  transfer  a  Bellas,  (1914)  1  B.  and  0.  P.  C.  95, 

German  vessel   to   the   British  flag  and  the  French  case  of  The  Golonia, 

while  m  transitu  just  before  the  out-  in  R.G.,  xxii.  (1915),  Jurisprudence, 

break  of  war  between  Great  Britain  pp.  45-47,  and  Garner,  i.  §  123.^ 


ENEMY   CHARACTER  133 

break  of  war  from  a  German  company  by  an  American 
citizen,  while  she  was  lying  in  an  American  port  and 
admitted  to  American  registry,  the  United  States  being 
then  neutral.  She  was  captured  by  a  French  cruiser 
on  the  way  to  Rotterdam  and  condemned.  The  court 
held  that  the  claimant  had  failed  to  estabhsh  that  the 
transfer  was  not  made  to  avoid  capture.^ 

The  rules  and  practices  so  far  considered  in  this 
section  relate  only  to  the  transfer  of  'private  enemy 
vessels ;  they  do  not  apply  to  the  transfer  by  a  belH- 
gerent  State  to  a  neutral  of  one  of  his  men-of-war  with 
a  view  to  escape  capture.  The  question  whether  a 
war-vessel  could  thus  divest  itself  of  enemy  character 
arose  during  the  World  War,  when  two  German  cruisers, 
Goeben  and  Breslau,  unable  to  escape  from  the  Medi- 
terranean, ran  up  the  Dardanelles  to  Constantinople,  and 
were  there  reported  to  have  been  sold  to  Turkey,  then 
neutral.  Vessels  so  transferred  by  a  beUigerent  to  a 
neutral  subject  had  come  before  the  British  ^  and 
American  ^  Prize  Courts  in  older  wars  and  had  been 
condemned,  on  the  ground  that  a  belligerent  war-vessel 
cannot  put  off  its  enemy  character  during  a  war. 

§  92.  The  transfer  of  enemy  goods  on  enemy  vessels  Transfer 
likewise  forms  part  of  the  larger  subject  of  enemy  char-  on  Enemy 
acter,  for  the  question  here  also  is  whether  such  a  transfer  ''Vessels. 
divests  these  goods  of  their  enemy  character,*  and  there 

^  See   R.G.,    xxii.    (1915),    Juris-  shortage  of  shipping  became  acute, 

prudence,  p.  83,  and  A.J.,  ix.  (1915),  Great  Britain  raised  no  objection  to 

p.  1015.  Compare  The  Edna,  (1919)3  the  transfer  of  an  enemy  vessel  to 

B.  and  C.  P.  C.  407.    See  also  Garner,  the  American  flag.     See  Gamer,   i. 

i.  §§  124-125,  132-133,  136,  138,  who  §  136  n. 

discusses  the  points  raised,  and  men-  *  The  Minerva,  (1807)  6  C.   Rob. 

tions  the  cases  of  The  Brindilla,  Pla-  396. 

turia,  and  Petrolite,  the  German  case  '  See  The  Georgia,  (1868)  7  W^all. 

of  TAePokiaq/" ^a/ma/ia,  and  abortive  32,  and  Garner,  i.  §  139,  who  also 

negotiations  between  Chili  and  Great  cites  the  American  case  of  The  Etta, 

Britain   for   the  recognition  of   the  (1864)  25  Fed.  Cases  No.  15,  p.  60. 

validity  of  the  transfer  to  the  Chilian  *  See  Hall,  §  172;    Twiss,    ii.  §§ 

flag   of   German   vessels   which   the  162,  163  ;  Phillimore,  iii.  §§  487,  488  ; 

Chilian  Government  desired  to  pur-  Dupuis,  Nos.    141-149,  and   Guerre, 

chase.     Later  in  the  war,  when  the  Nos.  68-73 ;  Boeck,  Nos.  182,  183. 


134  ON  WAR  IN  GENERAL 

was  likewise  no  unanimous  practice  among  the  maritime 
States  when  the  Naval  Conference  met  in  London  in 
1908-1909.  British  and  American  practice  has  always 
refused  to  recognise  a  sale  after  the  outbreak  of  war  of 
goods  in  trayisitu  if  the  vessel  was  captured  before  the 
neutral  buyer  had  actually  taken  possession  of  the 
goods.^  On  the  other  hand,  French  practice  used  to 
recognise  such  a  sale  in  transitu,  provided  it  could  be 
proved  to  have  been  honafide.^ 

The  unratified  Declaration  of  London  provided  by 
Article  60  that  enemy  goods  on  board  an  enemy  vessel 
retained  their  enemy  character  until  they  reached  their 
destination,  notwithstanding  any  transfer  effected  after 
the  outbreak  of  hostihties  while  the  goods  were  in 
transitu.  Such  goods  might  therefore  be  confiscated, 
although  they  had  been  sold  in  transitu  to  subjects  of 
neutral  States.^ 

At  the  outbreak  of  the  World  War,  Great  Britain  and 
some  of  the  other  belHgerents  gave  effect  to  this  article. 
It  did  not,  however,  cover  a  case  in  which  goods  sold 
by  an  enemy  to  a  neutral  and  consigned  to  him  were 
captured  in  transit,  and  before  they  had  actually  been 
dehvered  to  him.  According  to  British  practice,  the 
material  question  in  such  a  case  is  when  did  the  property 
in  the  goods  pass.     If  they  had  been  sold  to  the  neutral 

^  The  Jan  Frederick,  (1804)  5  C.  countries — Great  Britain   is  one  of 

Rob.   128  ;    The  Ann  Green,  (1812)  1  them,  see  §  44  of  the  Sale  of  Goods 

Gallison    274.       Where,     however.  Act,  1893  (56  &  57  Vict.  c.  71)— an 

goods  are  sold   by  an  enemy   to   a  unpaid  vendor  has,  in  the  event  of 

neutral  in  transitu  bona  fide  before  the  bankruptcy  of  the  buyer,  a  re- 

the   outbreak  of   war,   and  without  cognised  legal  right  to  recover  such 

expectation     of    war,    though    war  goods   as  have  already  become  the 

intervenes,  the  goods  are  not  liable  to  property  of  the  buyer,  but  have  not 

confiscation.      The  Southfield,  (1915)  yet  reached  him  (right  of  stoppage 

1  B.  and  C.  P.  C.  332.  in  transitu).     For  this  reason,  Article 

^  See   Boeck,    No.    1G2;    Dupuis,  60  stipulated  that  if,   prior  to  the 

No.  142.  capture,  the  neutral  consignor  exer- 

*  A  special  rule  was  provided  for  cised,  on  the  bankruptcy  of  the  enemy 

the  case  of  an  enemy  consignee    of  consignee,  his  right  of  stoppage  in 

goods  on  board  an  enemy  vessel  be-  transitu,    the   goods   regained   their 

coming   bankrupt   while   the   goods  neutral  character,  and  might  not  be 

were  in  transitu.      In  a  number  of  confiscated. 


ENEMY   CHARACTER 


135 


bona  fide  and  without  expectation  of  war,  then,  even 
though  war  had  broken  out  before  shipment,  Municipal 
Law  is  apphed  to  determine  when  the  property  in  the 
goods  passed  to  the  buyer,  and  if  it  passed  before  ship- 
ment, the  goods  are  not  confiscated.^  Where,  on  the 
other  hand,  the  goods  are  sold  after  the  outbreak  of 
war  (or  even  when  war  is  imminent),  prize  law  is  apphed 
to  the  question  when  the  property  passed,  and,  under 
prize  law,  goods  consigned  by  an  enemy  to  a  neutral 
do  not  become  neutral  property  until  actual  delivery.^ 
On  the  other  hand,  according  to  prize  law,  goods  con- 
signed by  a  neutral  to  an  enemy  are  liable  to  capture  in 
transit,  although  by  Municipal  Law  the  property  may 
still  remain  in  the  neutral  vendor.^  The  captor's  rights 
cannot  be  defeated  by  '  a  mere  transfer  of  legal  owner- 
ship by  documents.'  "* 


^  The  Parchim,  (1915)  1  B.  and 
C.  P.  C.  579,  reversed  on  appeal,  2 
B.  and  C.  P.  C.  489. 

2  The  United  States,  (1916)  2  B. 
and  C.  P.  C.  390,  525  ;  The  Kron- 
pririMSsan  Margareta,  (1917)  2  B. 
andC.  P.  C.  409  ;  The  Dirigo,  (1919) 
3  B.  and  C.  P.  C.  439. 


^  An  interesting  case  is  The  Palm 
Branch,  (1916)  2  B.  and  C.  P.  C.  281, 
3  B.  and  C.  P.  C.  241,  where  neutral 
property  became  enemj'  property 
after  capture  but  before  hearing. 
Compare  The  Orteric,  [1920]  A.  C. 
724. 

*  See  The  United  States,  (1916)  2 
B.  and  C.  P.  C.  390,  at  p.  393. 


CHAPTER   II 


THE   OUTBREAK   OF  WAR 


COMMENCEMENT  OF  WAR 


Com- 
mence- 
ment of 
War  in 
general. 


Grotius,  iii.  c.  3,  §§  5-14 — Bynkershoek,  Quaestiones  Juris  publici,  i.  c.  2 — 
Vattel,  iii.  §§  51-65— Hall,  §  123— Westlake,  ii.  pp.  19-28— Lawrence, 
§  140— Manning,  pp.  161-163— Phillimore,  iii.  §§  51-66— Twiss,  ii.  §§ 
31-40— Halleck,  i.  pp.  521-526— Taylor,  §§  455-456— Moore,  vii.  §§ 
1106-1108— Walker,  §  37— Hershey,  Nos.  338-342- Wharton,  iii. 
§§  333-335— Wheaton,  §  297— Bluntschli,  §§  521-528— Heffter,  §  120— 
Lueder  in  Holtzejidorff,  iv.  pp.  332-347 — Gareis,  §  80 — Liszt,  §  39,  v. 
— Ullmann,  §  171— Bonfils,  Nos.  1027-103P— Despagnet,  Nos.  513-516 
— Merignhac,  iii".  pp.  64-84— Pradier-Fod6r6,  vi.  Nos.  2671-2693— Nys, 
iii.  pp.  29-49— Rivier,  ii.  pp.  220-228— Calvo,  iv.  §§  1899-1911— Fiore, 
iii.  Nos.  1272-1276,  and  Code,  Nos.  1427-1433— Martens,  ii.  §  109— 
Longuet,  g§  1-7,  15-16— Pillet,  pp.  61-72— Lawrence,  War,  pp.  26-44— 
Barclaj^  Problem-'^,  pp.  53-58 — Boidin,  pp.  116-121 — Bordwell,  pp.  198- 
200 — Higgins,  pp.  202-205 — Holland,  War,  §  16 — L6monon,  pp.  395- 
406 — Nippold,  ii.  pp.  6-10 — Scott,  Conferences,  pp.  516-522 — Spaight, 
pp.  20-33— Ariga,  §§  11-12— Takahashi,  pp.  1-25— Land  War/are, 
§§  8-10 — Holland,  Studies,  p.  115 — Sainte-Croix,  La  Declaration  de 
Ouerre  et  ses  Effets  immediats  (1892) — Bruyas,  De  la  Declaration  de 
Gtierre,  etc.  (1899) — Tambaro,  L'inizio  della  Guerra  et  la  3"  Convenzione 
dell'Aja  del  1907  (1911)— Maurel,  De  la  Declaration  de  Guerre  (1907)— 
Soughimoura,  De  la  Declaration  de  Guerre  (1912) — Brocher  in  R.I.,  iv. 
(1872),  p.  400;  F6raud-Giraud  in  R.I.,  xvii.  (1885),  p.  19;  Nagaoka  in 
R.I.,  2nd  Ser.  vi.  p.  475 — Rolin  in  Annuaire,  xx.  (1904),  pp.  64-70 — 
Ebren  and  Martens  in  R.G.,  xi.  (1904),  pp.  133,  148— Dupuis  in  R.G., 
xiii.  (1906),  pp.  725-735— Stowell  in  A.J.,  ii.  (1908),  pp.  50-62. 

§  93.  According  to  the  former  practice,  a  condition 
of  war  could  arise,  either  through  a  declaration  of  war, 
or  through  a  proclamation  and  manifesto  by  a  State 
that  it  considered  itself  at  war  with  another  State,  or 
through  one  State  committing  hostile  acts  of  force 
against  another  State.     History  presents  many  instances 

136 


COMMENCEMENT    OF   WAR  137 

of  wars  commenced  in  one  of  these  three  ways.  Although 
Grotius  laid  down  the  rule  that  a  declaration  of  war  is 
necessary  for  its  commencement,^  the  practice  of  the 
States  shows  that  this  rule  was  not  accepted,  and  many 
wars  have  taken  place  between  the  time  of  Grotius  and 
our  own  without  a  pre\dous  ^  declaration  of  war.  No 
doubt  many  writers,^  following  the  example  of  Grotius, 
have  always  asserted  the  existence  of  a  rule  that  a 
declaration  is  necessary  for  the  commencement  of  war  ; 
but  it  cannot  be  denied  that,  until  the  Second  Peace 
Conference  of  1907,  such  a  rule  was  neither  sanctioned 
by  custom,  nor  by  a  general  treaty  of  the  Powers. 
Moreover,  many  writers  "^  distinctly  approved  of  the 
practice  of  the  Powers. 

This  does  not  mean  that  in  former  times  a  State 
would  have  been  justified  in  opening  hostihties  without 
any  preceding  conflict.  There  was,  and  can  be,  no 
greater  violation  of  the  Law  of  Nations  than  for  a  State 
to  begin  hostihties  in  time  of  peace  without  previous 
controversy,  and  without  having  endeavoured  to  settle 
the  conflict  by  negotiation.^  But  if  negotiation  had 
been  tried  without  success,  a  State  did  not  act  treacher- 
ously by  resorting  to  hostihties  without  a  declaration 
of  war,  especially  after  diplomatic  intercourse  had  been 
broken  off.  The  rule,  adopted  by  the  First  and  Second 
Hague  Conferences,®  that,  as  far  as  circumstatices  allow, 
before  appeal  to  arms  recourse  must  be  had  to  the  good 
offices  or  mediation  of  friendly  Powers,  did  not  essen- 
tially alter  matters,  for  the  formula  as  far  as  circwn- 

1  iii.  c.  3,  §  5.  Twiss,  ii.   §  35  ;    Phillimore,  iii.    §§ 

*  See  Maurice,  Hostilities  without  51-55;  Hall,   §   123;  Ullmann  (first 

Declaration  of  War  (1883).  edition),  §  145  ;  Gareis,  §  80. 

,  '  See    for  instance,^  Vattel    iii.   §  5  gee  above,  §  3,  where  the  rule  is 

f ^^?l      '^°'  ^^-  •■•     m'  '    ?.  -f fo"''  quoted  that  no  State  is  allowed  to 

§  o21  ;    Iiore,  m.    Nos.    12/4-127o ;  1                  t               1  •                       t 

XT  «■<-       e  lOA  make    use   or    compulsive  means  01 

Uetiter,  ^  120.  ,^,-      j-o-              f  ^               i.-  *• 

J  t!       f       •     i            T>     1       11  settling  dirierences  beiore  negotiation 

bee,  for  instance,  Bynkershoek,  ,       ,    °    .   •    , 

Quaestimes  Juris  publici,    i.    c.    2 ;        ^^  ^^®     ^"®  • 

Kliiber,  §  238  ;  G.  F.  Martens,  §  2G7  ;  *  Article  2  of  Convention  i. 


138  THE   OUTBREAK   OF  WAR 

stances  allow  in  practice  leaves  ever3rthing  to  the  dis- 
cretion of  the  Power  bent  on  making  war. 

The  outbreak  of  war  between  Russia  and  Japan  in 
1904,  through  Japanese  torpedo  boats  attacking  Russian 
men-of-war  at  Port  Arthur  before  a  formal  declaration 
of  war,  caused  a  movement  for  the  estabhshment  of 
some  written  rules  concerning  the  commencement  of 
war.  The  Institute  of  International  Law,  at  its  meet- 
ing at  Ghent  in  1906,  adopted  three  principles,^  accord- 
ing to  which  war  should  not  be  commenced  without 
either  a  declaration  of  war  or  an  ultimatum,  and,  in 
either  case,  delay  sufficient  to  provide  against  treacher- 
ous surprise  should  be  allowed  before  the  belfigerent 
had  recourse  to  actual  hostihties.  The  Second  Hague 
Conference  in  1907  took  up  the  matter  and  produced 
Convention  iii.  relative  to  the  commencement  of 
hostihties. 
Deciara-  §  94.  Accordiug  to  Article  1  of  Convention  iii.  hos- 
War.  tihties  must  not  commence  without  a  previous  and 
unequivocal  warning,  which  may  take  the  form  either  of 
a  declaration  of  war,  stating  the  reasons  why  the  Power 
concerned  has  recourse  to  arms,  or  of  an  ultimatum  with 
a  conditional  declaration  of  war. 

A  declaration  of  war  is  a  conununication  by  one  State 
to  another  that  the  condition  of  peace  between  them 
has  come  to  an  end,  and  a  condition  of  war  has  taken 
its  place.  In  former  times,  declarations  of  war  used  to 
take  place  with  greater  or  lesser  solemnities ;  but 
during  the  last  few  centuries  all  these  formahties  have 
vanished,  and  nowadays  it  may  take  place  through  a 
simple  communication.^     The  only  two  conditions  with 

^  See  ^nrmaire,  xxi.  (1906),  p.  283.  declaration  of   war  to   the   Russian 

^  Thus,  on  July  28,  1914,  Austria-  Foreign  Minister  [ibid.,  p.  234).     On 

Hungary  addres.sed  a  formal  deciara-  August  3,  1914,  the  German  ambas- 

tion   of    war   to    Serbia.     (Collected  sador  at  Paris  handed  to  the  French 

Diplomatic  Documents  (1915),  p.  44.)  Minister  for  Foreign  Affairs  a  letter 

On   August  2,    1914,    the    German  alleging  hostile  acts  by  Fi'ench  forces, 

ambassador  at  Petrograd  handed  a  and  stating  that  '  in  the  presence  of 


COMMENCEMENT   OB^   WAR  139 

which,  according  to  Article  1,  declarations  of  war  must 
comply,  are,  that  they  must  be  unmistakable,  and  that 
they  must  state  the  reason  for  resort  to  arms.  No  delay 
between  the  declaration  and  the  actual  commence- 
ment of  hostihties  is  stipulated,  and  it  is,  therefore, 
possible  for  a  Power  to  open  hostihties  immediately 
after  the  coimnunication  of  the  declaration  of  war  to 
the  enemy.  All  the  more  is  it  necessary  to  emphasise 
that  there  could  be  no  greater  violation  of  the  Law  of 
Nations  than  to  send  a  declaration  of  war  without  having 
previously  tried  to  settle  a  difference  by  negotiation. 

How  then  must  the  communication  of  a  declaration 
of  war  be  made  ?  Since  a  rule  is  nowhere  expressly 
formulated  that  the  declaration  must  be  communi- 
cated in  writing,  it  might  be  asserted  that  conamunica- 
tion  by  any  means,  be  it  by  a  written  document,  by 
telegraph  or  by  telephone  message,  or  by  direct  word  of 
mouth,  is  admissible.  I  beheve  that  such  an  assertion 
caimot  be  supported.  The  essential  importance  of 
the  declaration  of  war,  and  the  fact  that  according  to 
Article  1  of  Convention  iii.  it  must  be  unmistakable 
and  must  state  the  reason  for  resort  to  arms,  would 
seem  to  require  a  written  document,  which  is  to  be 
handed  over  to  the  other  party  by  an  envoy.  Further, 
the  fact  that  Article  2  of  Convention  iii.  expressly 
enacts  that  the  notification  of  the  outbreak  of  war  to 
neutrals  may  even  he  made  by  telegraph,  points  the  same 
way,  for  the  conclusion  is  justified  that  the  declaration 
of  war  stipulated  as  necessary  by  Article  1  may  not  be 
made  by  telegraph.  And  if  a  telegraph  message  is 
inadmissible,  much  more  are  telephone  messages,  and 
communications   by  word   of   mouth.    Moreover,   the 

these  acts  of  aggression  the  German  Germany  had  '  committed  repeated 

Empire   considers    itself   in   a  state  acts    of    war'    against    the    United 

of  war  with  France' (ifti^-,  P-  240).  States,thestateof  war  which  had  thus 

On   April  6,   1917,    the  Congress  of  been  thrust  upon  the  United  States 

the    United    States   passed   a    joint  was    '  thereby    f  ormallj"^    declared ' 

resolution    declaring   that    whereas  (^./.,xi.  (1917),  Supplement, p.  151). 


140  THE   OUTBREAK  OF  WAR 

practice  of  the  States  throughout  the  last  centuries 
has  been  to  hand  in  a  written  declaration  of  war,  when 
any  declaration  has  been  made. 

War,  as  between  the  belhgerents,  is  considered  to  have 
commenced  from  the  date  of  its  declaration,  although 
actual  hostihties  may  not  have  been  commenced  until 
much  later.  On  the  other  hand,  as  between  the  belh- 
gerents and  neutrals,  a  war  is  not  considered  to  have 
commenced  until  its  outbreak  has  been  notified  to  the 
neutrals,  or  has  otherwise  become  unmistakably  known 
to  them.  For  this  reason.  Article  2  of  Convention  rn. 
enacts  that  the  belligerents  must  at  once  after  the  out- 
break of  war  notify  ^  the  neutrals,  even  if  only  by 
telegraph,  and  that  the  state  of  war  shall  not  take 
efiect  with  regard  to  neutrals  until  after  they  have 
received  notification,  unless  it  be  estabhshed  beyond 
doubt  that  they  were  in  fact  aware  of  a  state  of  war. 
uiti-  §  95.  The  second  form  which  the  unequivocal  warning 

may  take  which  is  provided  for  by  Article  1  of  Convention 
III.  is  an  ultimatum  with  a  conditional  declaration  of  war. 
Ultimatum  ^  is  the  technical  term  for  a  written  com- 
munication by  one  State  to  another  which  ends  amicable 
negotiations  respecting  a  difference,  and  formulates, 
for  the  last  time  and  categorically,  the  demands  to  be 
fulfilled  if  other  measures  are  to  be  averted.  An  ulti- 
matum may  be  simple  or  qualified.  It  is  simple,  if  it 
does  not  include  an  indication  of  the  measures  contem- 
plated by  the  Power  sending  it.  It  is  qualified,  if  it 
does  indicate  the  measures  contemplated,  whether  they 
be  retorsion,  or  reprisals,  pacific  blockade,  occupation 
of  a  certain  territory,  or  war.^    Now  Article  1  of  Con- 

*  See  below,  §  307.  night  that  it  would  proceed  no  further 

*  See  above,  §  28.  with   the   violation   of   the  Belgian 
^  Thus,   on   August  4,    1914,    the       frontier,  the  British  Government  felt 

British  ambassador  at  Berlin  handed  bound   '  to  take   all  steps  in    their 

to  the   German  Foreign  Minister  a  power   to  uphold  the   neutrality  of 

written  statement  that,  unless  Ger-  Be\{^inm'  (Collected  Diplomatic  Docu- 

many  could  give  an  assurance  by  mid-  ments  {1915),  pp.  109-112). 


matum. 


COMMENCEMENT   OF   WAR  141 

vention  iii.  provides  for  a  qualified  ultimatum,  for 
it  must  be  so  worded  that  the  recipient  can  have  no 
doubt  about  the  commencement  of  war  in  case  he  does 
not  comply  with  its  demands.  For  this  reason,  if  a 
State  has  sent  a  simple  ultimatum  to  another,  or  a 
quaUfied  ultimatum  threatening  a  measure  other  than 
war,  it  is  not,  in  case  of  non-compliance,  justified  in 
commencing  hostilities  at  once  without  a  previous 
declaration  of  war.  So  Italy  sent  a  declaration  of 
war  to  Turkey  in  1911,  although  an  ultimatum  threaten- 
ing the  occupation  of  Tripoh  had  preceded  it. 

Convention  iii.  does  not  enact  a  minimum  length  of 
time  which  an  ultimatum  must  grant  before  the  com- 
mencement of  hostihties ;  this  period  may,  therefore, 
be  only  very  short,  as,  for  instance,  a  number  of  hours. 
All  the  more  is  it  necessary  to  emphasise  once  again 
that  there  could  be  no  greater  violation  of  the  Law  of 
Nations  than  to  send  an  ultimatum  without  previously 
having  tried  to  settle  a  difference  by  negotiation. 

The  state  of  war  following  an  ultimatum  must  hke- 
wise  be  notified  to  neutrals,  for  Article  2  of  Convention 
III.  appUes  to  this  case  also.  Further,  for  the  same 
reason  as  in  the  case  of  a  declaration  of  war,  an  ulti- 
matum containing  a  conditional  declaration  of  war  must 
be  communicated  to  the  other  party  by  a  written 
document. 

§  96.  There   is   no    doubt   that,    in   consequence   of  initiative 
Convention  iii.,  recourse  to  hostihties  without  a  pre-  A?t*s  of 
vious  declaration  of  war,  or  a  qualified  ultimatum,  is  War. 
forbidden.     But    a    war    can    nevertheless    break    out 
without  these  preliminaries.^    A  State  might  dehberately 
order  hostihties  to  be  commenced  without  a  previous 

*  Thus,  in  June  1913,  hostilities  by  the  Montenegrins.  Again,  Turkey 
broke  out  on  the  conquered  Turkish  entered  the  World  War  by  bom- 
territory  of  Macedonia  between  the  barding  a  Russian  port.  Turkey 
Bulgarian  forces  and  the  Serbian  had  not,  however,  ratified  Conven- 
and  Greek  forces,  which.were  joined  tion  iii. 


142  THE   OUTBREAK  OF  WAR 

declaration  of  war,  or  a  qualified  ultimatum.  Further, 
the  armed  forces  of  two  States  ha\ang  a  grievance 
against  one  another  might  engage  in  hostilities  without 
having  been  authorised  thereto,  and  without  the  respec- 
tive Governments  ordering  them  to  desist  from  further 
hostilities.  Again,  acts  of  force  by  way  of  reprisals,  or 
during  a  pacific  blockade,  or  an  intervention,  might  be 
forcibly  resisted  by  the  other  party,  hostilities  breaking 
out  in  this  way. 

It  is  certain  that  States  which  deliberately  order  the 
commencement  of  hostihties  without  a  previous  declara- 
tion of  war  or  a  qualified  ultimatum,  commit  an  inter- 
national delinquency ;  but  they  are  nevertheless  en- 
gaged in  war.  Further,  it  is  certain  that  States  which 
allow  themselves  to  be  dragged  into  a  condition  of  war 
through  unauthorised  hostile  acts  of  their  armed  forces 
commit  an  international  dehnquency ;  but  they  are 
nevertheless  engaged  in  war.  Again,  war  is  actually 
in  existence  if  the  other  party  forcibly  resists  acts  of 
force  undertaken  by  a  State  by  way  of  reprisals,  or 
during  a  pacific  blockade,  or  an  intervention.  Now  in 
all  these  and  similar  cases,  all  the  laws  of  warfare  must 
find  apphcation,  for  a  war  is  still  war  in  the  eyes  of 
International  Law,  even  though  it  has  been  illegally 
commenced,  or  has  automatically  arisen  from  acts  of 
force  which  were  not  intended  to  be  acts  of  war. 

However  that  may  be.  Article  2  of  Convention  iii. 
also  apphes  to  wars  which  have  so  broken  out,  and  the 
belligerents  must  without  delay  send  a  notification  to 
neutral  Powers,  so  that  these  may  be  compelled  to 
fulfil  the  duties  of  neutrahty.  But,  of  course,  neutral 
Powers  must  in  this  case  Ukewise,  even  without  notifi- 
cation, fulfil  the  duties  of  neutrahty,  if.  they  are  unmis- 
takably aware  of  the  outbreak  of  war. 


EFFECTS   OF  THE   OUTBREAK   OF  WAR  143 

II 

EFFECTS  OF  THE  OUTBREAK  OF  WAR 

Vattel,  iii.  §  63— Hall,  §§  124-126— Westlake,  ii.  pp.  32-55— Lawrence,  ?§ 
143-146— Manning,  pp.  163-165— Phillimore,  iii.  §§  67-91— Twiss,  ii. 
§§41-61— Halleck,  i.  pp.  526-552,  and  ii.  pp.  124-140— Taylor,  §§  461- 
468— Walker,  §§  44-50— Hershey,  Nos.  343-350— Wharton,  iii.  §§  336- 
337"— Wheaton,  §§  298-319— Moore,  v.  §  779,  and  vii.  §§  1135-1142— 
Hefifter,  §§  121-123— Lueder  in  Holtzendorff,  iv.  pp.  347-362— Gareis, 
§  81— Liszt,  §  39,  v.— Ullmann,  §  173— Bonfils,  No3.  1044-1065— 
Despagnet,  Nos.  517-519— Pradier-Fod6r6,  vi.  Nos.  2694-2720— M^ri- 
gnhac,  iii".  pp.  84-115 — Nys,  iii.  pp.  50-70 — Rivier,  ii.  pp.  228-237 — 
Calvo,  iv.  §§  1911-1931— Fiore,  iii.  Nos.  1290-1301,  and  Code,  Nos. 
1444-1450— Martens,  ii.  §  109— Longuet,  §§  8-15— Fillet,  pp.  72-84— 
Bordwell,  pp.  200-211— Spaight,  pp.  25-33— Ariga,  §§  13-15— Takahashi, 
pp.  26-88— Lawrence,  War,  pp.  45-55— Garner,  i.  §§  27-37,  39-61,  80- 
98,  141-143,  162-171,  173-174,  62-79,  99-117— Sainte-Croix,  La  Declara- 
tion de  Guerre  et  ses  EffetB  immediata  (1892),  pp.  166-207 — Meyer,  De 
r Interdiction  du  Commerce  enire  les  Bellig4rants  (1902) — Jacomet,  La 
Guerre  et  les  Traites  (1909) — Markovitch,  Des  Effets  de  la  Guerre  sur 
lea  Contrats  entre  Particuliers  (1912) — Wehberg,  pp.  194-200 — Borchard, 
§§46,  354 — M'Nair,  Legal  Effects  of  War  (1920)— Politis  in  Annuaire, 
xxiii.  (1910),  pp.  251-281,  and  xxiv.  (1911),  pp.  200-223— Beer  and 
Kleinfeller  in  Z.I.,  xxv.  (1915),  pp.  321-338,  and  pp.  383-395. 

§  97.  When  war  breaks  out,  even  if  it  be  limited  General 
to  two  members  of  the  Family  of  Nations,  neverthe-  fh?Out° 
less  the  whole  Family  of  Nations  is  affected,  since  the  ^i?*^  °^ 

.  War. 

rights  and  duties  of  neutrality  devolve  upon  such  States 
as  are  not  parties  to  the  war.  And  the  subjects  of 
neutral  States  may  feel  the  consequences  of  the  out- 
break of  war  in  many  ways.  War  is  not  only  a  calamity 
to  the  commerce  and  industry  of  the  whole  world,  but 
also  involves  the  alteration  of  the  legal  position  of  neutral 
merchantmen  on  the  open  sea,  and  of  subjects  of  neutral 
States  within  the  boundaries  of  the  belligerents.  For 
the  belhgerents  have  the  right  to  visit,  search,  and, 
if  need  be,  capture  neutral  merchantmen  on  the  open 
sea,  and  foreigners  who  remain  within  the  boundaries 
of  the  belhgerents,  although  subjects  of  neutral  Powers, 
acquire  in  a  degree  and  to  a  certain  extent  enemy 


144  THE   OUTBREAK  OF  WAR 

character,  1    However,  the  outbreak  of  war  tells  chiefly 
and  directly  upon  the  relations  between  the  belligerents 
and  their  subjects.     Yet  it  would  not  be  correct  to 
maintain  that  all  legal  relations  between  the  parties 
thereto,   and   between  their  subjects,   disappear  with 
the  outbreak  of  war.     War  is  not  a  condition  of  anarchy, 
indifierent  or  hostile  to  law,  but  a  condition  recognised 
and  ruled  by  International  Law,  although  it  involves 
a  rupture  of  peaceful  relations  between  the  belligerents. 
Rupture        §  98.  The  outbreak  of  war  at  once  causes  the  rupture 
matic       of  diplomatic  intercourse  between  the  belligerents,  if 
course  and  ^^i^    has    uot    already    taken    place.     The    respective 
Consular   diplomatic  envoys  are  recalled  and  ask  for  their  pass- 
ports, or  receive  them  without  any  previous  request ; 
but   they   enjoy   their  privileges   of   inviolabihty   and 
exterritoriahty   for  the   period   of   time   requisite   for 
leaving  the  country.  ^ 

The  official  residence  ^  of  a  departed  envoy  is,  accord- 
ing to  a  usage,*  confided  to  the  protection  of  another 
foreign  envoy,  and  the  archives,  if  left  behind,  are  placed 
under  seals.  ^  Sometimes  a  member  of  the  retinue  of 
the  departing  envoy  is  left  in  charge,  with  the  permis- 
sion of  the  local  Government. 

With  war,  consular  activity  likewise  comes  to  an 
end,  and  the  consular  archives  are  left  in  charge  of  an 
employe  of  the  consulate,  or  of  the  consul  of  another 
State.  ^  But  the  question  whether  the  consuls  them- 
selves must  be  permitted  to  leave  aroused  recrimina- 
tion  at   the   beginning   of   the   World   War.     Several 

^  See  above,  §  88.  by   a   mob  in  August  1914.     As  to 

*  For  the  incidents  attending  the  the   confiscation   of  the  seat  of  the 

departure     of     the    envoys    of    the  Austrian  Legation  to  the  Holy  See 

various  belligerents  at  the  outbreak  in  Rome,  see  above,  vol.  i.  §  390  n. 

of   the  World    War,  see  Garner,  i.  4  g^g  details  in  Garner,  i.  §  39  n. 

§§  27-33 

=>  None  the  less,  it  is  stated  in  a  '  ^Tu  *^1  *7![!^  w^"!^1  T^^  ^^ 

German  official   White   Paper    (see  ^^^  °"^break  of  the  World  War,  see 

Gamer,    i.    §   32)  that  the  German  Earner,  i.  ^  39. 

Embassy  at  Petrograd  was  wrecked  *  See  above,  vol.  i.  §  436. 


tion  of 
eaties. 


EFFECTS   OF  THE   OUTBREAK   OF   WAR  145 

belligerent  States  prevented  enemy  consuls  from  depart- 
ing, ^  and  accused  one  another  of  allowing  them  to  suffer 
great  indignities.^ 

§  99.  The  doctrine  was  formerly  held,  and  is  even  Canceiia- 
nowadays  held  by  a  few  writers,^  that  the  outbreak  of  ^l 
war  ipso  facto  cancels  all  treaties  previously  concluded 
between  the  belhgerents,  excepting  only  those  con- 
cluded especially  for  war.  But  the  vast  majority  of 
modern  writers  on  International  Law  have  abandoned 
this  standpoint,*  and  the  opinion  is  pretty  general 
that  war  by  no  means  annuls  every  treaty.  But 
unanimity  as  to  what  treaties  are  or  are  not  cancelled 
by  war  does  not  exist.  Neither  does  a  uniform  prac- 
tice of  the  States  exist,  cases  having  occurred  in  which 
States  have  expressly  declared  ^  that  they  considered  all 
treaties  annulled  through  war.  Thus  the  whole  question 
remains  as  yet  unsettled.  Nevertheless  a  majority  of 
writers  agree  on  the  following  propositions,  and  the  atti- 
tude of  the  belligerents  during  the  World  War  seems 
to  confirm  their  accuracy,  at  any  rate  on  many  points. 

(a)  Treaties  to  which  belligerents  alone  are  parties  : — 

(1)  The  outbreak  of  war  cancels  all  political  treaties 
between  the  belhgerents  (as,  for  instance,  treaties  of 
aUiance)  which  have  not  been  concluded  for  the  purpose 
of  setting  up  a  permanent  condition  of  things. 

(2)  On  the  other  hand,  it  is  obvious  that  treaties 
specially  concluded  for  war  are  not  annulled  (such  as 
treaties  in  regard  to  the  neutraHsation  of  certain  parts 
of  the  territories  of  the  belligerents). 

(3)  Political   and   other  treaties   concluded   for  the 

^  Thus  Germany  detained  British  *  See  Jacomet,  op.  cit.,  pp.  113- 
coHsuls,  and  Great  Britain  German  128. 
consuls,  until  an  agreement  for  ex- 
change was  made.  Pari.  Papers,  ^  As,  for  instance,  Spain  in  1898, 
Misc.,  No.  8  (1915),  Cd.  7857.  at  the  outbreak  of  the  war  with  the 
-  Details  in  Gamer,  i.  §§  34-36.  United  States  of  America  (see  Moore, 
'  See,  for  instance,  Phillimore,  iii.  v.  pp.  375-380),  and  Turkey  in  1911, 
§  530,  and  Twiss,  i.  §  252,  in  contra-  at  the  outbreak  of  her  war  with 
distinction  to  Hall,  §  125.  Italy. 

VOL.    II.  K 


146  THE   OUTBREAK   OF  WAR 

purpose  of  setting  up  a  permanent  ^  condition  of  things 
are  not  if  so  facto  annulled  by  the  outbreak  of  war  ;  but 
nothing  prevents  the  victorious  party  from  imposing 
by  the  treaty  of  peace  alterations  in,  or  even  the  dissolu- 
tion of,  such  treaties. 

(4)  Non-pohtical  treaties  not  intended  to  set  up  a 
permanent  condition  of  things  (such  as  treaties  of 
commerce,  for  example)  are  not  i'pso  facto  annulled  ; 
but  the  parties  may  annul  them  or  suspend  them 
according  to  discretion. 

The  plan  adopted  in  the  Treaties  of  Peace  was  to 
regard  all  treaties  to  which  two  belhgerents  were  the 
only  parties  as  having  been  annulled  by  the  war,  but 
to  give  to  the  victorious  Power  an  option  to  revive 
them  upon  certain  conditions.^ 

(b)  Treaties  to  which  many  States  are  parties  : — 

(5)  So-called  law-making^  treaties  (such  as  the 
Declaration  of  Paris,  for  example)  are  not  cancelled  by 
the  outbreak  of  war.  The  same  is  valid  in  regard  to 
all  treaties  to  which  a  multitude  of  States  are  parties 
(such  as  the  International  Postal  Union,  for  example)  ; 
but  the  belligerents  may  suspend  them,  as  far  as  they 
themselves  are  concerned,  in  case  the  necessities  of 
war  compel  them  to  do  so,*  and  they  in  fact  did  so 
diu-ing  the  World  War. 

The  Treaties  of  Peace  provide  that  only  the  treaties 

^  Thus     American     and    English  certain      pre-war      treaties      with 

courts — see  The  Society  for  the  Pro-  Germany.     See  London  Gazette,  July 

pagation  of  the  Gospel  v.    Town  of  23,  1920.     As  to  Austria,  see  London 

Newhaven,    (1823)  8    Wheaton  464,  (?aze«e,  November  2,  1920. 

and  Sutton  v.  Sutton,  (1830)  1  Russ.  ^  See  above,  vol.  i.  §§  18,  492,  555- 

and    M.    663  —  have    declared   that  568c. 

Article  9  of  the  treaty  of  November  *  The    Institute  of   International 

19,  1794,  between  Great  Britain  and  Law,  at  its  meeting  at  Christiania 

the  United  States  was  not  annulled  in    1912,    adopted  some   rules   with 

by  the  outbreak  of  war  in  1812.     See  regard  to  the  efl'ect  of  war  on  treaties. 

Moore,  V.  §  779,  and  Westlake,  ii.  p.  See  Annuaire,  xxv.   (1912),  p.  648; 

33 ;  seealsotheforeigncasesdiscussed  A.J.,-v\\.   (1913),  p.   153  (where  the 

by  Jacomet,  op.  cit.,  pp.  168-179.  rules  are  translated);  and  Davis  in 

^  See  the   Treaty   of  Peace   with  the    Proceedings    of   the    American 

Germany,      Article      289.        Great  Society  of  International    Law,    vi. 

Britain     has     accordingly     revived  (1912),  pp.  124-132. 


EFFECTS  OF  THE   OUTBREAK   OF  WAR  147 

of  an  *  economic  or  technical  character '  therein  men- 
tioned are  to  be  again  apphed  between  the  Central 
Power  concerned  and  those  of  the  AlHed  and  Associated 
Powers  party  thereto,^  and  some  of  them  only  with 
modification.  Treaties  neither  economic  nor  technical, 
but  to  which  many  States  are  parties,  are  not  referred 
to  in  the  Peace  Treaties,  but  the  Powers  correctly  treat 
them  as  being  again  in  force. 

§  100.  The   outbreak   of   war   affects   likewise   such  Pre- 
subjects  of  the  beUigerents  as  are  at  the  time  within  Po"i*J"on 
the  enemy's  territory.     In  former  times  they  could  all  ^^  ^^lU- 
at  once  be  detained  as  prisoners  of  war,  and  many  Subjects 
States,  therefore,  concluded  in  time  of  peace  special  Ter?itory^ 
treaties  for  the  time  of  war  expressly  stipulating  for  a 
period  during  which  their  subjects  should  be  allowed 
to  leave  each  other's  territory  unmolested.^     Through 
the  influence  of  such  treaties,   which   became  pretty 
general  during  the  eighteenth  century,  it  became  an 
international  practice  ^  that,  as  a  rule,  enemy  subjects 
must  be  allowed  to  withdraw  within  a  reasonable  period, 
and  no  instance  of  the  former  rule  occurred  during  the 
nineteenth  *   century.     Although   some  ^  writers   even 
nowadays  maintain  that,  according  to  strict  law,  the 
old  rule  is  still  in  force,  it  may  safely  ^  be  said  that  there 

^  See  above,  vol.  i.  §  5816,  where  the  capture  of  two  French  merchant- 

this  proceeding  is  discussed.  men  in  the  Bay  of  Audierne  without 

"  See   a   list   of    such    treaties  in  a  formal   declaration  of  war.      See 

Hall,  4th  ed.,  §  126,  p.  407,  n.  1.  Alison,  History  of  Europe,  v.  p.  277, 

^  See  Garner,  i.  §  40.  and  Bonfils,  No.  1052. 

*  With     regard    to     the     10,000  5  o„„  t«-,==    j;     «;  <;n     i?-   • 

„     ,.  ,  ",  ,   J    .  oee  iwnss,  11.   §  50 ;   Kivier,  11. 

Englishmen   who    were   arrested   in  ^     oon      t  .v^^    s   qo  xt  h     j 

17  *       1      Tv-r       1  ^  , ,  ^u      1  P-    ^"^"      i-iiszt,  8  39,    v.  ;    Holland, 

France  by  ISapoleon  at  the  outbreak  ^^^^^^^  ^^^   ^^^    X^^Urality 

of    war  with  England  in  1803,  and  ^.^nd  ed.  1913),  p.  39. 
kept  as  prisoners  or  war  tor  many 

years,  it  must  be  borne  in  mind  that  *  See  Land   Warfare,  §  12.     The 

Napoleon  did   not  claim  a  right  to  author   had,    however,   intended    to 

make  such  ci^-ilians  prisoners  of  war  consider    whether    this    rule    could 

as  were  at  the  outbreak  of  war  on  still   be  maintained,    having  regard 

French  soil.     He  justified  his  act  as  to  the  practical  difficulty  caused  by 

one   of    reprisals,    considering    that  the  interruption  of  communications 

England   had  violated  the  Law    of  and  the  importance  attaching  nowa- 

Nations  by  beginning  hostilities  with  days  to  man-power  and  espionage. 


148  THE   OUTBREAK   OF  WAR         ' 

is  now  a  customary  rule  of  International  Law,  according 
to  which  all  such  subjects  of  the  enemy  as  are  not  real 
or  potential  members  of  his  armed  forces  must  be 
allowed  a  reasonable  period  for  withdrawal.  On  the 
other  hand,  such  enemy  subjects  as  are  active  or  reserve 
officers,  or  reservists,  and  the  Hke,  may  be  prevented 
from  leaving,  and  be  detained  as  prisoners  of  war ;  for  the 
principle  of  self-preservation  must  justify  beUigerents 
in  refusing  to  furnish  each  other  with  resources  which 
increase  their  means  of  offence  and  defence.^ 

Several  States,  on  entering  the  World  War,  allowed 
enemy  subjects  on  their  territory  to  depart  within  a 
certain  time.^  For  example.  Great  Britain  permitted  Ger- 
mans to  leave  up  to  August  10,  1914.^  On  the  other 
hand,  Germany  and  Austria-Hungary  prevented  all  enemy 
subjects  from  departing  at  the  outbreak  of  the  war.* 

However  that  may  be,  a  belHgerent  need  not  allow  ^ 
enemy  subjects  to  remain  on  his  territory,  although 
this  is  frequently  done.  Thus,  during  the  Crimean 
War,  Russian  subjects  in  Great  Britain  and  France 
were  allowed  to  remain  there,  as  were  likewise  Russians 
in  Japan  and  Japanese  in  most  parts  of  Russia  during 
the  Russo-Japanese  War,  and  Turks  in  Italy  during  the 
Turco-Itahan  War.  Moreover,  during  the  World  War, 
almost  all  the  belhgerents  allowed  enemy  subjects 
resident  within  their  territory  to  remain.^  On  the 
other  hand,  France  expelled  all  Germans  during  the 
Franco-German  War  in  1870  ;  the  former  South  African 
Republics  expelled  most  British  subjects  when  war  broke 
out  in  1899  ;  Russia,  during  the  Russo-Japanese  War, 
expelled  Japanese  from  her  provinces  in  the  Far  East ; 

1  See  Land  Warfare,  g  13,  and  the  *  See  Gamer,  i.  §§  44-61. 

author's  Introducti- .n  to  Roxburgh,  ^  Statement  issued  by  the  Home 

The  Pris(/ner8  of   Wot  Information  OflBce  on  August  5,  1914. 

Bureau(VJl5).  Butanumberofpubli-  *  Garner,  i.   §45;    Satow   in  the 

cists — see,    for    instance,    Spaight,  Grotni-s  Society,  ii.  p.  8. 

p.  88 — put  forwa:  d  a  rule  that  even  *  See  above,  vol.  i.  §  .324. 

reservists  must  bj  allowed  to  leave.  *  See  details  in  Garner,  i.  §§  46-61. 


EFFECTS   OF  THE   OUTBREAK    OF   WAR  149 

in  May  1912,  during  the  Turco-Italian  War,  Turkey 
decreed  the  expulsion  of  all  Italians,  certain  classes 
excepted  ;  and,  during  the  World  War,  German  subjects 
not  of  niihtary  age  were  expelled  from  Portugal  and 
certain  British  colonies. 

In  case  a  belligerent  allows  the  residence  of  enemy 
subjects  on  his  territory,  he  can,  of  course,  impose 
conditions,  such  as  an  oath  to  abstain  from  all  hostile 
acts,  or  a  promise  not  to  leave  a  certain  region,  and  the 
like.  Restrictions  were  imposed  upon  resident  enemy 
aliens  in  almost  all  belligerent  States  during  the  World 
War.^  Moreover,  an  enemy  subject  who  is  allowed  to 
stay  must  not  join  the  forces  of  his  home  State,  or  assist 
them  in  any  way,  if  they  occupy  a  part  of  the  country 
in  which  he  resides.  If  he  does  so,  he  is  liable  to  be 
punished  for  treason  "^  after  their  withdrawal. 

During  the  World  War,  many  belligerents  not  only 
placed  all  enemy  aliens  under  strict  supervision,  but 
adopted  a  poHcy  of  general  interimient.  Such  aliens 
were  looked  upon  as  a  peril  to  the  State,  and  were 
themselves  in  danger  from  mob  violence  when  national 
passions  waxed  hot.  Thus  Great  Britain  had  in  the 
early  months  of  the  war  interned  only  about  a  third  of 
the  Germans  and  Austrians  in  the  United  Kingdom. 
But  when  the  torpedoing  of  the  Lusitania,  and  the 
drowning  of  more  than  1100  innocent  men,  women,  and 
children,  so  incensed  pubhc  opinion  that  riots  broke 
out  all  over  the  British  Empire,  and  the  life  of  enemy 
subjects  was  in  danger,  most  of  them  were  either  interned 
or  repatriated.^  France  *  and  Germany  ^  also  resorted 
to  general  internment,  but  the  United  States  did  not.^ 

Gamer,  ihid.  enemy  subjects  unfitted  for  military 

*  See  above,  vol.   i.   §  317,  where        service  by  age  or  sex  or   infirmity, 
the   case   of  De  Jager  v.   Attorney-       see  Garner,  i.  §§  45,  53. 

General  for  Natal,  [1907]  A.C.  326,  4  Garner,  i.  §  52. 

is  discussed.  .  '  .    "    _ 

*  As   to   the    various    agreements  "  t^^rner,  i.  §  o7. 
for  the  exchange  and  repatriation  of  *  Garner,  i.  §  61. 


150  THE   OUTBKEAK   OF  WAR 

Persma  §  100a.  Formerly  the  rule  prevailed  everywhere  that 
jSS)"n  ^^  enemy  subject  had  no  persona  standi  in  judido,  and 
Enemy     ^^s,  therefore,  imo  facto  by  the  outbreak  of  war,  pre- 

\lcrntorv  *         */  ^ 

'  vented  from  either  taking,  or  defendmg,  proceedings  in 
the  courts.  This  rule  dated  from  the  time  when  war 
was  considered  such  a  condition  between  belHgerents  as 
justified  hostihties  by  all  the  subjects  of  one  belUgerent 
against  a,ll  the  subjects  of  the  other,  the  kilhng  of  all 
enemy  subjects  irrespective  of  sex  and  age,  and,  at  any 
rate,  the  confiscation  of  all  private  enemy  property. 
War  in  those  times  used  to  put  enemy  subjects  entirely 
ex  lege,  and  it  was  only  a  logical  consequence  from  this 
principle  that  enemy  subjects  could  not  sustain  persona 
standi  in  judicio.  Since  the  rule  that  enemy  subjects 
are  entirely  ex  lege  has  ever}nvhere  vanished,  the  rule 
that  they  might  not  take  or  defend  proceedings  in  the 
courts  had  in  many  countries,  such  as  Austria-Hungary, 
Germany,  Holland,  and  Italy,  likewise  vanished  before 
the  World  War.  But  in  Great  Britain  and  the  United 
States  of  America  ^  enemy  subjects  were  still  prevented 
from  taking  legal  proceedings,^  although  there  were 
exceptions  to  the  general  rule. 

Pubhcists,  however,  were  debating  whether  these 
two  States  had  not  incurred  an  obhgation  to  alter  their 
Municipal  Law  in  consequence  of  Article  23{h)  of  the 
Hague  Eegulations,  by  which  it  is  forbidden  '  to  declare 
extinguished,  suspended,  or  unenforceable  in  a  court  of 
law  the  rights  and  rights  of  action  of  the  nationals  of  the 
adverse  party.'  Great  Britain  officially  repudiated  such 
an  interpretation  of  this  article,  pointing  out  that  neither 
the  actual  words  used,  nor  their  position  among  regulations 
for  the  operations  of  armies  in  the  field,  nor  the  circum- 
stances of  their  origin,  would  justify  such  a  construction.^ 

^  In  strict  law  also  in  France.  '  See   above,    vol.    i.    §  554  (11). 

^  The  le.vling  case  was  The  Hoop,        The  repudiation  was  contained  in  a 

(179&)  1  C.  Rob.  196.  letter  addressed  to  the  author  and 


EFFECTS   OF  THE   OUTBREAK   OF  WAR  151 

So  the  question  stood  until  the  eve  of  the  World  War, 
H'heu  the  German  Government  made  it  known  that 
'  in  view  of  the  rule  of  EngHsh  law  '  it  would  suspend 
'  the  enforcement  of  any  British  demands  against 
Germans  '  until  reciprocity  was  granted.^  No  arrange- 
ment was  made  ;  Great  Britain  followed  her  earher 
practice  ;  ^  and  it  is  very  doubtful  whether  ahen  enemies 
in  many  other  beUigerent  States  enjoyed  greater  pro- 
cedural capacity  than  those  in  the  United  Ejngdom.^ 
In  fact,  the  exceptions  to  the  Enghsh  rule  were,  or 
became,  such,  that  the  disabihty  to  sue  attached  prac- 
tically to  non-resident  alien  enemies  alone,  and  not  even 
to  them  in  all  cases. 

For,  in  the  first  place,  an  enemy  subject  resident  in  an 
alHed  or  neutral  country,"*  or  having  a  licence,^  was  not 
debarred  from  suing ;  and  such  a  hcence  was  implied, 
in  the  case  of  an  enemy  subject  resident  in  the  United 
Kingdom,  from  mere  comphance  with  the  obHgatory 
registration  order,®  and  was  not  lost  through  intern- 
ment in  pursuance  of  general  policy  as  a  civiHan  prisoner 
of  war.'^  Secondly,  an  enemy  ahen,  wherever  resident, 
was  permitted  to  appear  in  the  Prize  Court  as  a 
claimant  whenever  he  beheved  himself  entitled  to 
'  any  protection,  privilege,  or  rehef  under  any  of  the 
Hague  Conventions  of  1907/  ^    And  there  were  other 

at   once  made  public  by  him.     See  -  See  Porter  v.  Freitdejiherg,  [1915] 

details  in  Oppenheim,  The  League  of  1    K.B.     857,    and    M'Nair,     Legal 

Naticms  (1919),  pp.  45-55.     See  also  Effects  of  War  (1920),  pp.  26-58. 

Politis    in  E.G.,   xviii.    (1911),    pp.  3  ggg  ^^  discussion  of  the  practice 

249-259,    and    the    literature    there  of   the   United    States  of    America, 

quoted;  Kohler  in  Z.V.,  v.  (1911),  France,  and  Germany  in  Garner,  i. 

pp.  384-393;    Holland  in   the    Laiv  §§91-98. 

^"^nfn^    «em>!<;,     xxviii.    (1912)  -:  Tjjjg   ^^^^^  ^^^^^^^   .^   ^^^  ^f 

pp.  94-98  ;  Chartens  in  the  Juridtcal  j^^  ^^  j^j          Ducliem  of  Sidherland, 

Bemew     xxui     (1911)    pp.    30/-323;  (ig^^)  3^  T.L.R.  394. 

Uppenheim,    Vie   Zutunft   des    Vol-  bm.Tr         M-nn\  1  /n    r.  1     mp 

k^echtsimi),  pp.  30-32;  Wehberg  /  ^t,^"""^'  ^^'^^^  ^  ^-  ^°^-  ^^^' 

in    R.I.,    2nd    Ser.    xv.    (1913),    pp.  at  p.  -01. 

197-224;     Strupp     in     Z.I.      xxiii.  Princess    Thum    und    Taxis   v. 

(1913K   pt.   ii.   pp.    118-136^  and  in  .l/o#<,  [1915]  1  Ch.  58. 

.^.  r.,  viii.  (1914),  pp.  57-66;  West-  '  Schafftniua   v.    Goldberg,    [1916] 

lake,  ii.  pp.  83-86.  1  K.B.  284. 

^  See  [1915]  I  K.B.  at  p.  879.  »  The  Mowe,  [1915]  P.  1,  at  p.  15. 


152 


THE   OUTBREAK  OF  WAR 


exceptions.^  Even  where  an  enemy  subj  ect  does  fall  under 
a  disability  to  sue  during  war,  his  right  of  action  is  not 
extinguished,  but  will  revive  with  the  return  of  peace ; 
and  even  if  the  Treaty  of  Peace  does  not  so  expressly 
provide,^  the  statute  of  hmitations  probably  does  not 
run  against  him  during  the  war.^ 

Moreover,  an  aUen  enemy,  whether  or  not  he  can  be 
plaintiff,  can  always  be  made  defendant,'*  and  by  the 
Legal  Proceedings  against  Enemies  Act,  1915,^  Parlia- 
ment provided  a  special  means  for  serving  a  writ  on 
an  aUen  enemy  outside  the  jurisdiction  in  a  certain 
class  of  proceedings. 

§  101.  Before  the  World  War,  following  Bynkers- 
hoek,^  most  British  and  American  writers  and  cases, 


^  Thus  a  non-resident  alien  enemy 
could  be  joined  as  a  nominal  plaintiii" 
for  the  purpose  of  pleading  (iJocZWgrztez 
V.  Speyer  Bros.,  [1919]  A.C.  59), 
and  probably  an  enemy  soldier  or 
sailor  who  had  been  captured  and 
made  a  prisoner  of  war  could  sue, 
on  the  authority  of  the  old  case  of 
Maria  v.  Hall,  (1800)  2  B.  and  P. 
236,  on  a  contract  for  wages.  It 
was  stated  in  the  last  edition  of 
this  book,  on  the  authority  of 
Shepekr  v.  Durant,  (1854)  14  C.B. 
582,  that  if  a  defendant  obtained  an 
opportunity  to  plead,  and  if  sub- 
sequently war  broke  out  with  the 
country  of  the  plaintiff,  the  defendant 
may  not  plead  that  the  plaintiff  is 
prevented  from  suing ;  but  see  now 
Hdlfdd  V.  Rechnitzer,  (1914)  The 
Times,  December  11,  1914.  It  was 
also  stated,  on  the  authority  of  Ex 
parte  Boussmaker,  (1806)  13  Ves.  71, 
that  an  alien  enemy  could  prove 
for  a  debt  in  bankruptcj' ;  but  this 
is  no  longer  the  law,  unless  he 
is  relieved  from  his  disability  on 
other  grounds  ;  Re  Wilsmi,  (1915)  84 
L.J.K.B.  1893.  It  was  also  said, 
on  the  authority  of  Janson  v.  Drie- 
fontein  Consolidated  Mines  Limited, 
[1902]  A.C.  484,  that  a  defendant 
might  waive  the  plea  of  an  alien 
enemy.  But  it  is  probable  that  this 
would  no  longer  be  allowed.  See 
the  dicttim  of  Bailhache  J.  in  Robin- 


son and  Co.  v.  Continental  Insurance 
Co.,  [1915]  1  K.B.  155  at  p.  159. 

^  By  the  Treaties  of  Peace  at 
the  end  of  the  World  War  it  is 
stipulated  that  '  all  periods  of  pre- 
scription, or  limitation  of  right  of 
action  .  .  .  shall  be  treated  in  so 
fai'  as  regards  relations  between 
enemies,  as  having  been  suspended 
for  the  duration  of  the  War.  They 
shall  begin  to  run  again  at  earliest 
three  months  after  the  coming  into 
force  of  the  treaty.'  See  Ti-eaty 
of  Peace  with  Germany,  Article  300. 

^  The  point  is  not  settled,  for  the 
obiter  dictum  in  De  Wahl  v.  Braune, 
(1856)  25  L.J.  (N.S.)  Ex.  343,  is 
not  decisive,  although  Anson,  Prin- 
ciples of  the  English  Law  of  Contract 
(11th  ed.  1906),  p.  122,  and  other 
writers  accept  it  as  decisive.  For 
cases  arising  out  of  the  World  War, 
the  above-mentioned  provision  of  the 
Treaties  of  Peace  has  received  statu- 
tory force.  See  also  the  American 
case  of  Hanger  v.  Abbot,  (1867)  6 
Wall.  532,  and  Gregory,  The  Effect 
of  War  on  the  Operation  of  Statutes 
of  Limitation  (1915). 

*  Robinson  and  Co.  v.  Continental 
Insurance  Co.,  [1915]  1  K.B.  155. 

*  5  Geo.  v.  c.  36. 

*  Quaestiones  Juris  publici,  i.  c.  3  : 
'  quamvis  autem  nulla  specialis  sit 
commerciorum  prohibitio  ipso  tamen 
jure  belli  commercia  esse  vetita, ' 


EFFECTS   OF  THE   OUTBREAK   OF  WAR  153 

and  also  some  French  ^  and  German  ^  writers,  asserted  inter- 
the  existence  of  a  rule  of  International  Law  that  all  especSuy 
intercourse,  and  especially  trading,  was  ipso  facto  by  j^g*^^"^' 
the  outbreak  of  war  prohibited  between  the  subjects  of  Subjects 
the  belligerents,  unless  it  was  permitted  under  the  custom  gerents. 
of  war  (as,  for  instance,  ransom  bills),  or  was  allowed 
under  special  Hcences,  and  that  all  contracts  concluded 
between  the  subjects  of  the   beUigerents   before  the 
outbreak  of  war  become  extinct  or  suspended.     On  the 
other  hand,  most  German,  French,  and  Italian  -wTiters 
denied  the  existence  of  such  a  rule,  but  asserted  the 
existence  of  another,  according  to  which  belhgerents 
were  empowered  to  prohibit  by  special  orders  all  trade 
between  their  own  and  enemy  subjects. 

These  assertions  were  remnants  of  the  time  when  the 
distinction  ^  between  International  and  Municipal  Law 
was  not,  or  was  not  clearly,  drawn.  International  Law, 
being  a  law  for  the  conduct  of  States  only  and  exclu- 
sively, has  nothing  to  do  directly  with  the  conduct  of 
private  individuals,  and  both  assertions  are,  therefore, 
nowadays  untenable.  Their  place  must  be  taken  by 
the  statement  that,  States  being  sovereign,  and  the 
outbreak  of  war  bringing  the  peaceful  relations  between 
belligerents  to  an  end,  it  is  within  the  competence  of 
every  State  to  enact  by  its  Municipal  Law  such  rules 
as  it  pleases  concerning  intercoiu'se,  and  especially 
trading,  between  its  own  and  enemy  subjects. 

And  if  we  look  at  the  Municipal  Laws  of  the  several 
countries,  as  they  stood  before  the  World  War,  we  find 

^  For  instance,  Fillet,  p.  74,  and  facto  by  the  outbreak  of  war  all 
M^rignhac,  iii".  p.  107.  trading    with    the    enemy    is    pro- 

'  For   instance,    Geffcken    in    liis        ^'^}^^'{l    ^"^   ^^^   Jl'^^^^    Trading 

note  4  to  Hefifter,  p.  265.  V^^    ^^^  ,E°^™y    ^«^^.^«    <^^^.^   »° 

^  Journal     cm      Droit      international 

^  See  above,  vol.  i.  §  20.  But  in  (Clunet),  xlii.  (1915),  p.  103)  pro- 
spite  of  everything  that  speaks  claims  that  'une  des  consequences 
against  it.  Sir  S.  Evans,  in  The  de  I'^tat  de  guerre,  depuis  longtemps 
Panariellos,  (1915)  1  B.  and  C.  P.  C.  admise  par  le  droit  des  gens,  est 
195,  again  pronounced  that  it  is  a  d'entrainer  I'interdiction  de  tout 
rule  of  International  Law  that  ipso  commerce  avec  I'ennemi.' 


154  THE   OUTBREAK  OF  WAR 

that  they  have  to  be  divided  into  two  groups.  To  the 
one  group  belonged  those  States — such  as  Austria- 
Hungary,  Germany,  Holland,  and  Italy — whose  Govern- 
ments were  empowered  by  their  Municipal  Laws  to 
prohibit  by  special  order  all  trading  with  enemy  subjects 
at  the  outbreak  of  war.  In  these  countries  trade  with 
enemy  subjects  was  permitted  to  continue  after  the 
outbreak  of  war  unless  special  prohibitive  orders  were 
issued.  To  the  other  group  belonged  those  States — 
such  as  Great  Britain,  the  United  States  of  America, 
and  France — whose  Municipal  Laws  declared  trade  and 
intercourse  with  enemy  subjects  ipso  facto  by  the  out- 
break of  war  prohibited,  but  empowered  the  Govern- 
ments to  allow  by  special  licence  all  or  certain  kinds  of 
such  trade.  In  Great  Britain.  ^  and  the  United  States 
of  America,  it  had  been,  since  the  end  of  the  eighteenth 
century,  an  absolutely  settled  ^  rule  of  the  Common 
Law  that,  certain  cases  excepted,  all  intercourse,^  and 
especially  trading,  with  alien  enemies  became  ipso  facto 
by  the  outbreak  of  war  illegal,  unless  allowed  by  special 
licence. 

AATien  the  World  War  came,  the  belhgerents  by  statute 
or  decree  supplemented  or  varied  their  Municipal  Law 

^  See  Porter  V.  Frevdenberg,  [1915]  ^  Whereas  the  Admiralty  Court 
1  K.B.  857,  and  besides  the  text-  did  at  all  times,  the  Common  Law- 
books quoted  above  at  the  commence-  Courts  did  not  during  the  eighteenth 
ment  of  §  97,  Pennant,  Chadwick,  century  hold  trading  with  enemy 
and  Gregory  in  the  Law  Quarterly  subjects  to  be  illegal,  at  any  rate  not 
iiemew,  xviii.  (1902),  pp.  289-296,  XX.  in  so  far  as  insurance  of  enemy 
(1904),  pp.  1G7-185,  XXV.  (1909),  pp.  vessels  and  goods  against  capture 
297-316  ;  Bentwich,  The  Law  of  on  the  part  of  English  cruisers  was 
Private  Property  in  IFar  (1907),  pp.  concerned;  see  Henkle  v.  London 
4:1-^1;  'Ph.iWi^v.on,  The  Effect  of  War  Exchange  Assurance  Co.,  (1749)  1 
an  Contracts  {l^m) ;  Latifi,  Effects  Ves.  320;  Planche  v.  Fletcher, 
of  War  on  Property  (1909),  pp.  50-  (1779)  1  Dougl.  251;  Lavahre  v. 
58;  Markovitch,  Bes  Effets  de  la  irason,  (1779)  1  Dougl.  284  ;  Qist  y. 
guerre  sur  les  Contrats  entre  Par-  Mason,  (1786)  1  T.R.  84. 
ticuliers  (1912) ;  Schuster  and  Htrupp 

in  Z.L,  xxiii.  (1913),  pt.  ii.  pp.  21,  '  That    a    British     subject    who, 

118;    iScott   in    the    Law    Quarterly  after  the  outbreak  of  war,  becomes 

Review,  xxx.   (1914),  pp.  77-90,  and  naturalised  in    the    enemy   country 

xxxi.    (191'5),    pp.     30-49 ;    M'Nair,  commits     an    act    of     treason    was 

Legal  Effectt  of  War  (1920),  pp.  99-  decided  in  R.  v.  Ijynch,  [1903]  1  K.B, 

106.  444.     See  above,  vol.  i.  §  306. 


EFFECTS   OF  THE   OUTBREAK   OF  WAR  155 

relating  to  trading  with  the  enemy.  Thus  Great  Britain, 
in  September  1914,  passed  the  Trading  with  the  Enemy 
Act,  1914,^  forbidding  (except  under  Ucence)  all  trans- 
actions during  the  war  which  were  prohibited  by 
Common  Law,  statute,  or  proclamation,  and  among  them 
were  all  that  would  improve  the  financial  or  commercial 
position  of  a  person  trading  or  residing  in  an  enemy 
country  :  e.g.  paying  debts  to  him,  dealing  in  securities 
in  which  he  was  interested,  handhng  goods  destined 
for  him  or  coming  from  him,^  or  contracting  with  him,^ 
By  a  decree  of  September  27,  1914,*  France,  after  a 
preamble  reciting  that  war  of  itself  prohibited  all  com- 
merce vdth.  the  enemy,  expressly  forbade  all  trade 
with  enemy  subjects  or  persons  residing  in  an  enemy 
country,  all  contracts  (tout  acte  ou  contrat)  with  such 
persons,  and  the  discharge  for  their  benefit  of  obliga- 
tions, pecuniary  or  otherwise,  resulting  from  '  tout  acte 
ou  contrat  passe.'  ^  Germany,  by  an  ordinance  of 
September  30,  1914,  prohibited  all  payments  to  persons 
resident  in  the  British  Empire,  and  the  ban  was  extended 
later  to  persons  resident  in  other  enemy  coimtries.  But 
German  law  admits  trading  with  the  enemy  which  is 
not  expressly  forbidden,  and  legislation  in  Germany 
against  such  trading  seems  to  have  been  less  rigorous 

^  4  &5Geo.  V.  c.  87.     See  M'Nair,  -  It  had   long  been    the   British 

Legal Effectsof  War (W20),-p\i.^^-\0<o.  rule  that  all  contracts  entered  into 

"  Trading   ■«ith    the   enemy   does  during   a    war   with   alien    enemies 

not   become   legal  by  the  fact  that  ^sithout  a  special  licence  are  illegal, 

goods     coming     from     the     enemy  invalid,  and  can  never  be  enforced ; 

country  to  Great  Britain,  or  going  but  prior  to   the  Trading  with  the 

from   Great   Britain   to   the   enemy  Enemy  Act,  1914,  and  the  proclama- 

country,  are  sent  to  their  destination  tion  thereunder,  two  exceptions  to  it 

through  a  neutral  country  (Moisw  had  been  recognised  :    (1)  where  the 

Donokoe,  (1916)  32  T.L.R.  343:   The  contract  was  entered  into  in  a  case 

Jcmge  Fitter,  (1801)  4  C.  Rob.  79).  of  necessity  (Antoine  v.    Morshead, 

But  if  the  goods  have  been  bought  (1815)  6  Taunt.  237)  :    (2)  where  it 

by    the  subject  of   a   neutral    State  was  in  order  to  supply  an  invading 

bona  fide  by  himself  and  are  after-  English  armj'  or  the    English  fleet 

wards     shipped     through      neutral  (The  Madonna  ddle  Gracie,  (1802)  4 

country   to   the   enemy,  it  is  not  a  C.  Rob.  195). 

case   of  trading   \vith    the    enemy;  *  Text  in  Journal  du  Droit  infer- 

see    The  Samuel,   (1802)  4  C.    Rob.  national  (Clunet),  xlii.  (1915),  p.  103. 

284  n.  5  gge  Qarner,  i.  §§  162-163. 


156  THE   OUTBREAK  OF  WAR 

than  in  Great  Britain  or  France.^  The  United  States, 
by  the  Trading  with  the  Enemy  Act  of  October  6, 
1917,2  prohibited  all  trading  or  contracting  with  persons 
resident  or  doing  business  in  an  enemy  country,  all 
payments  to  such  persons,  and  all  business  or  commercial 
communication  with  them. 

It  has  been  by  the  apphcation  of  their  trading  with 
the  enemy  doctrine  that  the  courts  have  determined 
the  effect  of  war  in  Enghsh  law  upon  contracts  con- 
cluded before  its  outbreak.^  For  all  such  contracts 
are  regarded  as  abrogated  by  outbreak  of  war  if  for 
their  further  performance  they  require  intercourse  with 
the  enemy. '^  Thus  partnerships  with  ahen  enemies  are 
dissolved ;  ^  a  contract  of  affreightment  must  not  be 
fulfilled  ;  and  therefore  Enghsh  ships  must  not  load  or 
unload  goods  in  an  enemy  port.^  Moreover,  even  if  the 
further  performance  of  the  contract  would  not  appear 
necessarily  to  involve  intercourse  with  the  enemy  (as 
where  the  contract  contains  an  express  provision  that 
its  execution  should  be  suspended  during  war),  it  is 
still  hable  to  be  treated  as  abrogated  if  its  continued 
existence  is  against  pubhc  policy  as  laid  down  in  the 
decided  cases. '^  On  the  other  hand,  contracts  belong- 
ing to  certain  classes,  particularly  those  which  '  are  really 
the  concomitants  of  rights  of  property '  (a  contract  of 
tenancy,^  for  instance),  are  not  abrogated,  but  suspended.® 

*  See  Garner,  i.  §§  164-167.  the  British  partner. 

2  A.J.,    xii.    (1918),   Supplement,  e  Eaposito    v.    Bowden,    (1857)   7 

p.  27.  E.    and  B.  763.     See   also   Amhold 

2  As  to  the  Municipal  Law  in  other  Karherg  and  Co.  v.   Blythe,    Oreen, 

countries,  see  Garner,  i.  §§  168-171,  Jourdain   and    Co.,    [1916]    1    K.B. 

173-174.  495,  at  p.  505. 

*  The  leading  case  in  Ertel  Bieber  ?    ,-,  ,  7  n-  ,            »  ^          n-    m-  ^ 
anrJ   Co.    v.    Rio    Tinto   Co.,    [1918]  '  ^^^{^''Yr.-ofov. 
A.C.  260.     For  details,  see  M'Nair,  ^°V^^^}^it■?■          "^a          \    .^ 
op.  cit. ,  pp.  59-74,  106-162.  "8^*^  ^^ich  had  accrued  prior  to  the 

-"  Hugh    Stevenson    and    Smu    v.  outbreak  of  war  are  not  abrogated, 

A.-G.    far    Cartmnagen    Industrie,  but  suspended. 

[1917]  1  K.B.  842,  [1918]  A.C.  239.  *  HaUey   v.    Lowenfeld,   [1916]  2 

The  property  of  the  enemy  partner,  K.B.  707. 

and  the  fruits  which  it  earned  during  *  Ertel  Bieher  and  Co.  v.  Rio  Tinto 

the  war,  do  not  however  belong  to  Co.,  [1918]  A.C.,  at  p.  269. 


EFFECTS   OF   THE   OUTBREAK   OF   WAR  157 

The  Treaties  of  Peace  have  laid  down  certain  rules 
which  are  to  be  applied  by  all  the  belligerents  in  the 
World  War  ^  to  determine  the  position  of  pre-war  con- 
tracts, and  these  rules  generally  follow  British  practice. 
The  governing  principle  is  that  such  contracts  were  abro- 
gated as  from  the  date  when  trading  between  the  parties 
became  unlawful ;  "^  but  this  principle  does  not  apply 
to  leases,  mortgages,  and  other  important  classes  of 
contracts  mentioned  in  the  treaties. 

§  102.  In  former  times  belhgerents  could  confiscate  Position 
all  private  and  pubhc  enemy  property,  immoveable  or  ger^nti'- 
moveable,  on  each  other's  territory  at  the  outbreak  of  Property 
war,  and  also  enemy  debts  ;  and  the  treaties  ^  concluded  Enemy 
between  many  States  for  the  withdrawal  of  their  subjects  ^***®" 
at  the  outbreak  of  war  provided  Hkewise  for  the  un- 
restrained withdrawal  of  the  private  property  of  their 
subjects.     Through  the  influence  of  such  treaties,  and 
of  Municipal  Laws  and  decrees  enacting  the  same,  an 
international  usage  and  practice  grew  up  that  belh- 
gerents should  neither  conJiscate  private  enemy  pro- 
perty on  their  territory  nor  annul  enemy  debts.     The 
last  case  of  confiscation  of  private  property  was  that 
of  1793,  at  the  outbreak  of  war  between  France  and 
Great    Britain.     No    case   occurred    dming    the    nine- 
teenth century,  and  although  several  waiters  maintain 
that,  according  to  strict  law,  the  old  rule,  in  contradis- 
tinction to  the  usage  which  they  do  not  deny,  is  still 
valid,  it  may  safely  be  maintained  that  it  is  obsolete,* 

^  Except     the     United      States,  scrutinised   in    Re    Ferdinand,    Ex- 

Japan,  and  Brazil.  Tsar  of  Bulgaria,  [1921]  1  Ch.  107, 

"  '  Except  in  respect  of  any  debt  and  the  Court  of  Appeal  held  that 

or  other  pecuniary  obligation  arising  the  Crown  had  a  right  to  confiscate 

out  of  anj'  act  done  or  money  paid  such   property  until  the   passing  of 

thereunder.'     See  Article  299  of  the  the  Trading  with  the  Enemy  Acts, 

Treaty  of  Peace  with  Germany.  but  that  as  the  powers  conferred  by 

^  See  above,  §  100 ;  Moore,  vii.  §  these   acts    for    dealing   with    such 

1196;  Scott,    Conferences,   pp.   559-  propertj- were  inconsistent  \\'ith  the 

563.  exercise  of  the  Common  Law  right 

*  The  position  in  English  law  of  'of  forfeiture,  that  right  must  be  held 

private  enemy  property  on  land  was  to  have  been  abandoned.     See  also 


158  THE   OUTBREAK  OF  WAR 

and  that  there  is  now  a  customary  rule  of  International 
Law  in  existence  prohibiting  the  confiscation  of  private 
enemy  property  and  the  annulment  of  enemy  debts  on 
the  territory  of  a  belHgerent.  This  rule,  however,  does 
not  prevent  a  belhgerent  from  seizing  'public  enemy 
property  on  his  territory,  such  as  funds,  ammunition, 
provisions,  roUing  stock  of  enemy  state  railways,  and 
other  valuables ;  from  preventing  the  withdrawal  of 
private  enemy  property  which  may  be  made  use  of  by 
the  enemy  ^  for  mihtary  operations,  such  as  arms  and 
munitions  ;  from  seizing  and  using  rolling  stock  belong- 
ing to  private  enemy  railway  companies,  and  other 
means  of  transporting  persons  or  goods  and  appHances 
for  the  transmission  of  news,  although  they  are  private 
enemy  property,  provided  all  these  articles  are  restored, 
and  indemnities  are  paid  for  them,  after  the  conclu- 
sion of  peace  ;  ^  or  from  suspending  the  payment  of 
enemy  debts  till  after  the  conclusion  of  peace  in  order 
to  prevent  the  increase  of  the  resources  of  the  enemy. 

The  rule  that  private  property  on  land  is  not  hable 
to  confiscation  guided  the  pohcy  of  the  belHgerents  in 
the  early  stages  of  the  World  War.  Thus  the  British 
Trading  with  the  Enemy  (Amendment)  Act,  1914,^ 
created  a  custodian  of  enemy  property  whose  general 
duty  it  was  to  receive  dividends  and  other  sums  which 
became   payable   to   enemies,  invest   them,  and   hold 

Hugh  Stevemc/n  awl  Sons  v.  A.-G.  is,    according  to   Article  53  of  the 

fur    Cartonnagen    Indu$trie,    [1917J  Hague   Regulations,    permissible    in 

1  K.B.   842,  at  p.   848,  [1918]  A.C.  occupied  enemy   country,    provided 

239,    at    p.    244 ;     and     Porter    v.  they   are  restored   and   indemnities 

Freudenberg,    [1915]  1  K.B.   857,  at  paid  after  the  conclusion  of   peace, 

p.  870.  seizure    must    likewise — under    the 

^  The      indulgence      granted      to  same    conditions — be  permissible  in 

enemy  merchantmen  in  Russian  and  case  these  articles  are  on  the  territory 

Japanese  ports  at   the  outbreak    of  of  a  belligerent.     As  regards  rolling 

the  war  in  1904,  to  leave  unmolested  stock    belonging   to   private    enemy 

within  a  certain   time,   was   condi-  railway    companies,    see    Nowacki, 

tional  upon   there  being  no  contra-  Die  Eiaenbahnen  im    Kriege  (1906), 

band  in  the  cargoes.     See  Lawrence,  §  15. 
Wa/r,  p.  52. 

^  As  the  seizure  of  all  these  articles  '  5  Geo.  v.  c.  12. 


EFFECTS   OF  THE   OUTBREAK   OF   WAR  159 

them  (subject  to  the  payment  of  debts  in  ceitain  cases) 
until  the  end  of  the  war.  But  the  desire  to  ehminate 
the  financial  and  commercial  influence  of  the  enemy, 
and  other  motives,  presently  led  in  most  States  to  excep- 
tional war  measures  against  the  businesses  and  pro- 
perty of  enemies,  which,  though  not  confiscation, 
inflicted  great  loss  and  injury.  Sometimes  these 
measures  stopped  short  of  divesting  the  enemy  owner- 
ship of  the  property  ;  but  in  other  cases  the  businesses 
or  property  were  liquidated,  and  were  represented  at 
the  close  of  hostihties  by  nothing  else  than  the  proceeds 
of  their  reaUsation,  often  enough  out  of  all  proportion 
to  their  value.  ^ 

The  readjustment  of  rights  of  private  property  on 
land  was  pro\"ided  for  by  the  Treaties  of  Peace.  The 
general  principles  underlying  their  compHcated  arrange- 
ments were  that  the  vaHdity  of  all  completed  war 
measures  was  reciprocally  confirmed,  but  that  while  un- 
completed Uquidations  on  the  territories  of  the  Central 
Powers  were  to  be  discontinued,  and  the  subjects  of  the 
victorious  Powers  were  to  receive  compensation  for 
the  loss  or  damage  inflicted  on  their  property  by  the 
emergency  war  measures,  the  property  of  subjects  of 
the  vanquished  Powers  on  the  territories  of  the  Allied 
and  Associated  Powers  might  be  retained  and  liquidated, 
and  the  owner  was  to  look  for  compensation  to  his  own 
State.  The  proceeds  of  the  realisation  of  such  property 
were  not  to  be  handed  over  to  him,  or  to  his  State,  but 
were  to  be  credited  to  his  State  as  a  payment  on  account 
of  the  sums  payable  by  it  under  the  treaties.^  Between 
some  States,  Great  Britain  and  Germany  for  example, 
clearing  offices  were  estabhshed  for  the  collection  and 
payment  of  pre-war  debts.^ 

^  For    details,    see   Garner,    i.    §§       Peace  with  Germany,  Articles  297- 
62-79.  298. 

'  See     Treaty     of     Peace     with 
'  See,    for    example,    Treaty     of       Germany,  Article  296. 


160 


THE   OUTBREAK   OF   WAR 


Property  found  by  a  belligerent  on  one  of  his  merchant- 
men does  not  enjoy  any  immunity  from  confiscation, 
since  enemy  private  property  at  sea,^  unlike  private 
property  on  land,  is  hable  to  capture  ever3rwhere  except 
on  a  neutral  vessel  or  neutral  territory.^  Accordingly, 
during  the  World  War,  British  Prize  Courts  in  several 
cases  condemned  enemy  goods  on  British  merchant- 
men whether  seized  before  or  after  they  had  been 
landed  in  British  ports.^ 

Fm'ther,  enemy  goods  discharged  before  the  out- 
break of  war  into  a  bonded  warehouse  in  a  British  port, 
and  found  in  bond  at  the  outbreak  of  war,  are  still 
considered  by  British  practice  as  sea-borne.* 

§  102a.  In  former  times  International  Law  em- 
powered States  when  war  was  impending,  or  at  its 
outbreak,  to  lay  an  embargo  upon  all  enemy  merchant- 
chantmen.  men  in  their  harbours  in  order  to  confiscate  them. 
Further,  enemy  merchantmen  at  sea  could  at  the  out- 
break of  war  be  captured  and  confiscated,  although  they 
did  not  even  know  of  the  outbreak  of  war.  As  regards 
enemy  merchantmen  in  the  harbours  of  the  belhgerents, 


Effect  of 
the  Out- 
break of 
War  on 


^  In  1905,  during  the  Russo- 
Japanese  War,  a  Russian  vessel,  the 
Thalia  (see  Takahashi,  pp.  605-620 ; 
Russian  and  Japanese  Prize  Cases,  ii. 
p.  116),  was  seized  while  undergoing 
repairs  in  a  Japanese  shipyard,  and 
condemned  as  an  enemy  vessel,  al- 
though, being  on  land  beside  a  dock, 
she  was  not  at  sea.  This  was  prior 
to  Hague  Convention  vi.,  which  for- 
bade confiscation  of  enemy  merchant- 
men in  harbour  at  the  outbreak  of 
war.     (See  below,  §  102a.) 

-  The  assertion — see  Latifi,  Effects 
of  War  on  Property  (1909),  p.  90— 
that  as  '  from  the  point  of  view  of 
Municipal  Law,  ships  are  floating 
portions  of  the  national  jurisdiction,' 
enemy  goods  found  in  a  belligerent's 
own  ships  '  are  not  subject  to  the 
law  of  maritime  capture,  but  will  be 
on  the  footing  of  the  moveable 
property  of  enemy  subjects  found  on 


a  belligerent's  territory,'  is  wrong, 
because  merchantmen  are  not  really 
floating  portions  of  the  flag  State. 
See  above,  vol.  i.  §  264. 

^  The  Miramichi,  (1914)  1  B.  and 
C.  P.  C.  137  ;  The  ten  bales  of  silk  at 
Port  Said,  (1916)  2  B.  and  C.  P.  C. 
247;  The  Dandolo,  (1916)  2  B.  and 
C.  P.  C.  339.  See  below,  §  177  and 
§  197.  The  Roumanian,  (1914)  1  B. 
and  C.  P.  C.  75,  536.  On  the  mean- 
ing of  the  term  '  poi't '  see  Baty  in  the 
Law  Quarterly  Review,  xxxiv.  (1918), 
pp.  420-427,  who  denies  that  quays 
and  dry  docks  are  part  of  a  port. 
And  it  matters  not  whether  enemy 
cargo  itself  is  concerned,  or  the  pro- 
ceeds of  its  sale,  because  it  had  been 
sold  in  a  British  port  on  account  of  its 
perishable  character.  The  Olenroy, 
(1918)  3B.  andC.  P.  C.  161. 

*  The  Eden  Hall,  (1916)  2  B.  and 
C.  P.  C.  84. 


I 


EFFECTS   OF  THE   OUTBREAK   OF  WAR  161 

it  became,  from  1854,  during  the  Crimean  War,  a  usage, 
if  not  a  custom,  that  no  embargo  ^  should  be  laid  on 
them  for  the  purpose  of  confiscating  them,  and  that  a 
reasonable  time,  so-called  days  of  grace,  should  be 
granted  them  to  depart  unmolested  ;  but  no  rule  was 
in  existence  until  the  Second  Hague  Conference  of  1907, 
which  produced  a  Convention  (vi.)  '  relative  to  the 
Status  of  Enemy  Merchant-ships  at  the  Outbreak  of 
Hostilities. '  ^  In  coming  to  an  agreement  on  the  subject, 
two  facts  had  to  be  taken  into  consideration.  There  was, 
first,  the  fact  that  in  all  maritime  countries  numerous 
merchantmen  were  being  built  from  special  designs  in 
order  that  they  might  quickly,  at  the  outbreak  of,  or 
during,  war,  be  converted  into  cruisers  ;  it  would  there- 
fore have  been  folly  for  a  belHgerent  to  grant  any  lenient 
treatment  to  such  vessels.  There  was,  secondly,  the 
fact  that  a  belligerent  fleet  could  not  remain  effective 
for  long  without  being  accompanied  by  a  train  of 
coUiers,  transport  vessels,  and  repairing  vessels ;  it  was, 
therefore,  of  the  greatest  importance  for  a  belligerent 
to  have  as  many  merchantmen  as  possible  at  his  dis- 
posal to  give  such  assistance  to  the  fleet.  For  this 
reason  Convention  vi.  represented  a  compromise,  and 
distinguished  between  vessels  in  the  harbours  of  the 
belhgerents  and  vessels  on  the  sea. 

(a)  Vessels  in  harbour  : — 

(1)  Article  1  of  the  convention  enacts  that,  in  case 
an  enemy  merchant  ship  is  at  the  beginning  of  the  war 
in  the  port  ^  of  a  beUigerent,  or  having  left  its  last  port 
of   departure  before  the  commencement  of  the  war. 


^  See  above,  §  40.  article,  a  vessel  must  be  inside  a  port ; 

*  See  L^monon,  pp.  647-661  ;  it  is  not  sufficient  that  she  is  inside 
Higgins,  pp.  300-307  ;  Nippold,  ii.  a  roadstead  leading  to  a  port.  See 
pp.  146-153;  Scott,  Conferences,  pp.  The  Belgia,  (1915)  1  B.  and  C.  P.  C. 
556-568  ;  Dupuis,  Ouerre,  Nos.  74-  303,  2  B.  and  C.  P.  C.  32 ;  see  also 
81  ;  Scott  in  A.  J.,  ii.  (1908),  pp.  260-  The  Mowe,  (1914)  1  B.  and  C.  P.  C. 
269;  Wehberg,  pp.  194-200.  60;    The  Fenix,  Z.I.,  ix.  (1915),  p. 

*  To   enjoy   the    benefit   of    this  103,  A.J.,  x.  (1916),  p.  909. 

VOL.   II.  L 


162  THE   OUTBREAK   OF  WAR 

enters  a  belligerent  port  in  ignorance  of  its  outbreak,  it 
is  desirable  that  she  should  be  allowed  freely  to  depart, 
either  immediately  or  after  a  reasonable  number  of 
days  of  grace,  and,  after  being  furnished  with  a  pass,  to 
proceed  direct  to  her  port  of  destination,  or  to  any 
other  port  indicated.  It  is  obvious  that,  since  only  the 
desirability  of  free  departure  of  such  vessels  is  stipu- 
lated, even  a  belhgerent  which  is  a  party  to  the  con- 
vention is  not  compelled  to  grant  free  departure  ;  never- 
theless there  must  be  grave  reasons  for  not  acting  in 
accordance  with  what  is  considered  desirable  by  Article 
1.  Secondly,  such  a  belligerent  may  make  a  distinc- 
tion in  the  treatment  of  the  several  enemy  vessels  in 
his  harbours,  and  may  grant  free  departure  to  one  or 
more  of  them,  and  refuse  it  to  others,  according  to 
discretion. 

(2)  The  former  usage  that  enemy  merchantmen  ^  in 
the  harbours  of  the  belligerents  at  the  outbreak  of  war 
might  not  be  confiscated,  was  made  a  binding  rule  upon 
the  parties  by  Article  2,  which  enacts  that  such  vessels 
as  are  not  allowed  to  leave,^  or  are  by  force  majeure^ 
prevented  from  leaving  during  the  days  of  grace,  may 
not  be  confiscated,  but  may  only  be  detained  for  restora- 

^  The    British    Prize   Court    was  In   H.M.    Procurator  in  Egypt    v. 

called  upon   to   decide    what   kinds  Deutsches  Kohlen  Depot  Geselhchaft, 

of    vessels   came   within   the    term  (1916)    2    B.    and    C.    P.    G.    439, 

merchantmen  (navires  de  commerce).  3    B.  and  C.  P.   C.    264,  the  Privy 

It     condemned     the     Germania,     a  Council  held  that  a  fleet  of  lighters 

racing  yacht  found  at  Cowes  at  the  used  in  port  to  coal  vessels,  and  the 

outbreak   of  war  (1  B.  and  C.  P.  C.  tugs  used   to    tow  them,    were   not 

573,  and,  on  appeal,  2  B.  and  C.  P.  C.  merchantmen.       See  also   The  Atlas 

365;    see    Zitelmann    in    Z.V.,    xi.  and  Z/i^^A^er^  (1916)  2  B.  and  C.  P.  C. 

(1918),  pp.   1-19),  and  the  Oriental,  470. 

a    Hungarian   yacht    found    in    the  *  There    were    several    cases    in 

same  place  (1  B.  and  C.  P.  C.  at  p.  which  vessels   did  not  avail  them- 

575),  on  the  ground  that  they  were  selves  of  a  pass,  and  were  therefore 

not  merchantmen.    The  author  would  condemned.     See  3^/»e  Pmdos,  (1915) 

have  preferred  to  include  within  the  1  B.  and  C.  P.  C.  248,  2  B.  and  C.  P.  C. 

term  private  vessels  of  all  kinds  (as  146. 

did  the  German  Prize  Court  in  an-  ^  Lack     of    funds    is    not   force 

other  connection  —  see  The  Prima-  majeure:  The  Concadoro,  {\915)  IB. 

vera,  Journal  du  Droit  international  and  C.  P.  C.  390,  2  B.  and  C.  P.  C, 

(Clunet),     xUv.     (1917),     p.     1804).  64. 


EFFECTS   OF  THE   OUTBREAK   OF  WAR  163 

tion,  without  compensation,  after  the  conclusion  of 
peace,  or  requisitioned  on  payment  of  compensation  to 
the  owners. 

(3)  Both  these  articles  apply  also  to  enemy  cargo  on 
board  these  vessels.^ 

(4)  The  convention  does  not  apply  to  merchant  ships 
which  by  their  construction  show  that  they  are  intended 
for  conversion  into  war  vessels.^ 

By  Ai1}icle  6  this  convention  was  made  applicable 
only  if  all  the  belhgerents  in  a  war  were  party  to  it. 
During  the  World  War,  several  belligerents,  including 
the  United  States  and  Italy,  were  not  parties,  and  the 
question  arose  whether  in  strict  law  it  was  binding.^ 

However  this  may  be,  at  the  outbreak  of  the  war 
Germany  proposed  to  the  AlHed  Powers  that  days  of 
grace  should  be  allowed  to  merchant  vessels  found  in 
enemy  ports  to  depart  unmolested,  and  France,  by 
decrees  of  August  4  and  August  13,  1914,  granted  seven 
days'  grace  to  German  and  Austrian  vessels  in  French 
harbours,  or  entering  them  in  ignorance  of  the  outbreak 
of  hostihties.^  Great  Britain,  by  Order  in  Council  of 
August  4,  1914,^  declared  that  if  information  was 
received  by  a  certain  hour  that  no  less  favourable  treat- 
ment was  being  accorded  by  Germany  to  British 
merchantmen  and  cargoes,  German  merchantmen  (with 
certain  exceptions)  in  British  ports,  or  entering  them 
subsequently  in  ignorance  of  the  declaration  of  war, 
might  load  and  depart  within  ten  days.  But  no  such 
information  was  received,  and  all  German  vessels  were 
detained.^  On  the  other  hand,  reciprocal  permission 
to  depart  within  a  period  of  grace  was  granted  by 
Great  Britain   to  Austrian  merchant   vessels  and    by 

^  Article  4.  *  See  Garner,  i.  §  105,  and  R.G., 

*  Articles.    The  Derfflinger, (1916)       xxii.  (1915),  Documents,  pp.  9-10. 

2  B.  and  0.  P.  C.  36.  *  Lcmdon  Gazette,  August  7,  1914. 

*  See  Garner,  i.  §  104,  who  holds  *  Londcm  Gazette,  August  11,  1914; 
that  it  was  not  binding.  The  author  The  Chile,  (1914)  1  B.  and  C.  P.  C. 
had  expressed  no  opinion.  1,  at  p.  7. 


164  THE   OUTBREAK   OF  WAR 

Austria-Hungary  to  British  merchant  vessels  found  in 
their  harbours  or  entering  them  in  ignorance  of  the 
outbreak  of  war.^ 

The  first  German  vessel  found  in  port  to  come  before 
the  British  Prize  Court  was  The  Chile,  and  she  was  not 
then  condemned,  but  ordered  to  be  detained  until  further 
order.^  A  similar  decree  was  made  in  many  other  cases.^ 
Among  them  was  that  of  The  Marie  Leonhardt,  which 
came  again  before  the  court  after  the  conclusion  of 
peace  as  a  test  case.*  After  argument  upon  the  bind- 
ing force  ^  of  Article  2  of  Hague  Convention  vi.  the 
German  owners  abandoned  their  claim  under  that 
convention,  and  the  court  held  that  (apart  from  the 
convention  upon  which  it  had  become  unnecessary  to 
express  an  opinion)  '  ships  of  the  enemy  in  our  ports 
at  .  .  .  the  outbreak  of  hostilities  are  detained  in  our 
ports  to  be  confiscated  if  no  reciprocal  agreement  is 
made."  ® 

(6)  Vessels  on  the  sea  : — 

(1)  Enemy  merchant  ships  which  left  their  last  port 
of  departure  before  the  outbreak  of  war,"'  and,  while 
still  ignorant  of  the  outbreak  of  war,  are  met  at  sea  ^ 
{en  mer)  by  cruisers  of  the  belhgerents,  may,  according 
to  Article  3,  be  captured ;  they  may  not,  however,  be 
confiscated,  but  may  either   be  detained   for   restora- 

*  LondonGazette,  August  14c,  1914;  Britain   and   Germany   in   order   to 

Gamer,  i.  §  106.     As  to  the  attitude  escape  capture  by  French  cruisers, 
of  other  belligerents,  see  Garner,  i.  *  [1921]  P.  1. 

§§105,  lOG,  115  5  See  above,  p.  163. 

2  See  1  B.  and  C.  P.  C.  at  p.  12.  e   Af  „    n 

«  The  Bellas,  (1914)  1  B.  and  C.  .  f^  ^\  '\  ^        ^  ,^^ 

P.  C.  95  ;  The  Gutenfeh,  (1916)  2  B.  See  also  below,  §  188,  concerning 

and  C.  P.  C.  36  ;  The  Turvl,  (1919)  3  so-called  days  of  grace. 
B.  and  C.  P.  C.  356 ;  The  Prim  Adal-  *  Article  3  is  not  applicable  to  an 

bert,  (1916)  2  B.    and  C.  P.   C.  70,  enemy  merchantman  at  anchor  in  a 

reversed  on  appeal,  3  B.  and  C.  P.  C.  port  of   its   home  State,  and  there 

70 ;    The  Kronprinzessin  Cecilie,  see  captured   by  a  cruiser  of  the  other 

3  B.  and  C.  P.  C.  363  at  p.  365,  also  belligerent.      See   the   case    of    the 

reversed  on  appeal.     In  these  last  Turkish  vessel  Sabah  captured   by 

two    cases    the    German    ship    had  an  Italian  cruiser  in  a  Turkish  port, 

taken  refuge  in  a  British  port  prior  which  is  discussed  by  Coquet  in  A  G'. , 

to  the  outbreak  of  war  between  Great  xxi.  (1917),  pp.  261-265. 


EFFECTS   OF  THE   OUTBREAK   OF  WAR  165 

tion  after  the  war,  without  compensation,  or  be  requisi- 
tioned, or  even  destroyed,  on  payment  of  compensa- 
tion, so  long  as  provision  is  made  for  the  safety  of  the 
persons  on  board,  and  the  security  of  the  ship's  papers. 
It  is  obvious  that,  in  case  such  vessels  are  not  ignorant 
of  the  outbreak  of  war — having,  for  instance,  received 
the  news  by  wireless  telegraphy — ^they  may  not  any 
longer  claim  the  p^i^^leges  stipulated  by  Article  3. 
And  this  article  stipulates  expressly  that,  after  having 
touched  a  port  of  their  own  or  of  a  neutral  country, 
such  vessels  are  no  longer  privileged. 

(2)  This  article  appHes  also  to  enemy  cargo  on  board 
such  vessels. 

(3)  It  does  not  apply  to  merchant  ships  which  by 
their  construction  show  that  they  are  intended  for 
conversion  into  war  vessels. 

Germany  and  Russia  entered  reservations  against 
this  article  ;  consequently  the  British  ^  and  French  ^ 
Prize  Courts  condemned  German  vessels,  and  the 
German  ^  Prize  Court  condemned  a  Russian  vessel, 
captured  at  sea  while  still  ignorant  of  the  outbreak  of 
war. 

1  The  Marie  Glceser,   (1914)  1  B.  by  Garner,  i.  §  113. 
and  C.  P.  C.  38,  [1914]  P.  218  ;   The 
Perk-eo,  (1914)  1  B.  and  C.  P.  C.  136.  »  The  Fenix,  Z.I.,  ix.    (1915),  p. 

*  The  Porto,  and  other  eases  cited  103  ;  A.J.,  x.  (1916),  p.  909. 


CHAPTER   III 

WARFARE   ON   LAND 

I 

ON  LAND   WARFARE   IN  GENERAL 

Vattel,  iii.  §§  136-138— Hall,  §§  184-185— Philliraore,  iii.  §  94— Taylor,  § 
469— Wheaton,  §  342— Bluntschli,  §§  534-535— Hefifter,  §  125— Lueder  in 
Holtzendorff,  iv.  pp.  388-389— Gareis,  §  84— Bonfils,  Nos.  1066-1067— 
Pradier-Foddr6,  vi.  Nos.  2734-2741— Longuet,  §  41— Pillet,  pp.  85-89— 
Krieguhrauch,  p.  9 — Land  Warfare,  §  39 — Holland,  War,  Nos.  1-15. 

Aims  and  §  103.  The  puipose  of  wai,  namely,  the  overpowering 
ij&nT  °  of  ^^^  enemy,  is  served  in  land  warfare  through  two 
Warfare,  aims  ^ — first,  defeat  of  the  enemy  armed  forces  on  land, 
and,  secondly,  occupation  and  administration  of  the 
enemy  territory.  The  chief  means  by  which  belli- 
gerents try  to  reahse  those  aims,  and  which  are  always 
conclusively  decisive,  are  the  different  sorts  of  force 
apphed  against  enemy  persons.  But  besides  such 
violence  against  enemy  persons,  there  are  other  means 
which  are  not  at  all  unimportant,  although  they  play 
a  secondary  part  only.  Such  means  are  :  appropria- 
tion, utihsation,  and  destruction  of  enemy  property ; 
siege ;  bombardment ;  assault ;  espionage ;  utihsa- 
tion of  treason  ;  ruses.  All  these  means  of  warfare  on 
land  must  be  discussed  in  this  chapter,  as  must  also 
occupation  of  enemy  territory. 

§  104.  But — ^to  use  the  words  of  Article  22  of  the 
Hague    Regulations — '  the    belUgerents    have    not    an 

^  Aims  of  land  warfare  must  not  be  confounded  with  ends  of  war;   see 
above,  §  66. 
166 


ON   LAND   WARFARE   IN  GENERAL  167 

unlimited  right  as  to  the  means  they  adopt  for  iujm'ing  Lawful 
the  enemy/     For  not  all  possible  practices  of  injuring 'unlawful 
the  enemy  in  offence  and  defence  are  lawful,  certain  J^'^^'^f^^J^^'* 
practices  being  prohibited  under  all  circumstances  and  warfare. 
conditions,    and   other   practices   being   allowed   only 
under  certain  circumstances  and  conditions,  or  only 
with  certain  restrictions.     The  principles  of  chivalry 
and  of  humanity  have  been  at  work  for  many  hundreds 
of  years  to  create  these  restrictions,  and  their  work  is 
not  yet  at  an  end/     However,  apart  from  these  restric- 
tions, all  kinds  and  degrees  of  force,  and  many  other 
practices,  may  be  made  use  of  in  war. 

§  105.  In  a  sense,  all  means  of  warfare  are  directed  Objects 
against  one  object  only — namely,   the  enemy  State,  Means  of 
which  is  to  be  overpowered  by  all  legitimate  means.  Warfare. 
Apart  from  tliis,  the  means  of  land  warfare  are  directed 
against  several  objects.^     Such  objects  are  chiefly  the 
members  of  the  armed  forces  of  the  enemy,  but  hke- 
wise,  although  in  a  lesser  degree,  other  enemy  persons  ; 
further,   private  and  public  property,   fortresses,   and 
roads.     Indeed,  apart  from  certain  restrictions,  every- 
thing may  eventually  be  the  object  of  a  means  of  war- 
fare, provided  the  means  are  legitimate  in  themselves, 
and  are  capable  of  promoting  the  reahsation  of  the 
purpose  of  war. 

§  106.  Land  warfare  must  be  distinguished  from  sea  Land 
warfare  chiefly  for  two  reasons.     First,  their  circum-  jn  contra- 
stances  and  conditions  differ  widely,   and,   therefore,  ^iQ^ToSea 
their  means  and  practices  also  differ.     Secondly,  the  Warfare. 
law-making  conventions  w^hich  deal  with  warfare  rarely 
deal  with  land  and  sea  warfare  at  the  same  time,  but 
generally  treat  them  separately.     Thus,  whereas  some 
conventions  deal  exclusively  with  warfare  on  sea,  the 

^  See,  however,  above,  §  67.  Verbrechens  (1894),  pp.  64:-146,  where 

the  relation  of  human  actions  with 
*  See  Oppenheim,  Die  Objekte  des       their  objects  is  fully  discussed. 


168  WARFARE   ON  LAND 

Hague  Regulations  (Convention  rv.)  deal   exclusively 
with  warfare  on  land. 


II 

VIOLENCE   AGAINST   ENEMY  PERSONS 

Grotius,  iii.  c.  i  and  c.  11— Vattel,  iii.  §§  139-159— Hall,  §§  128,  129,  185— 
Westlake,  ii.  pp.  76-83 — Lawrence,  §§  161,  163,  166-169 — Maine,  pp. 
123-148— Manning,  pp.  196-205— Phillimore,  iii.  §§  94-95— Halleck,  ii. 
pp.  14-18— Moore,  ^-ii.  §§1111,  1119,  1122,  1124— Hershey,  Nos.  376- 
380— Taylor.  §§  477-480— Walker,  §  50— Wheaton,  §§  343-345— Blunt- 
schli,  §§  557-563 — HefFter,  §  126 — Lueder  in  Holtzendorff,  iv.  pp.  390- 
394— Gareis,  §  85— Kliiber,  §  244— Liszt,  §  40,  iii.— G.  F.  Martens,  ii. 
§  272— UUmann,  §  176— Bonlils,  Nos.  1068-1071,  1099,  1141— Despagnet, 
Nos.  525-527 — M^rignhac,  iii\  pp.  240-270 — Pradier-Fod6r6,  vi.  Nos. 
2742-2758— Rivier,  ii.  pp.  260-265— Nys,  iii.  pp.  144-148— Calvo,  iv.  §§ 
2098-2105— Fiore,  iii.  Nos.  1317-1320,  1342-1348,  and  Code,  Nos.  1481- 
1488— Martens,  ii.  §  110— Longuet,  §§  42-49— Pillet,  pp.  85-95— Holland, 
War,  pp.  70-76— Zorn,  pp.  127-161— Bordwell,  pp.  278-283— Meurer,  ii. 
§§  30-31 — Spaight,  pp.  73-156 — Kriegslrrauch,  pp.  9-11 — Lajid  War/are, 
§§  39-53— Garner,  i.  §§  175-190— Schultze  in  Z.I.,  xxvii.  (1918),  pp. 
1-39. 

On  §  107.  As  war  is  a  contention  between  States  for 

JntSerai  ^^^  puiposc  of  oveipoweiing  each  other,  violence  con- 
against  sistiug  of  different  sorts  of  force  appHed  against  enemy 
Persons,  pcrsoiis  is  the  chief  and  decisive  means  of  warfare. 
These  different  sorts  of  force  are  used  against  both 
combatants  and  non-combatants,  but  with  discrimina- 
tion and  differentiation.  The  purpose  of  the  apphca- 
tion  of  violence  against  combatants  is  their  dis- 
ablement so  that  they  can  no  longer  take  part  in 
the  fighting  ;  and  this  purpose  may  be  reahsed  through 
killing  or  wounding  them,  or  making  them  prisoners. 
But  to  non-combatant  members  of  armed  forces, 
private  enemy  persons  showing  no  hostile  conduct, 
and  officials  in  important  positions,  only  minor  means 
of  force  may  as  a  rule  be  applied,  since  they  do 
not  take  part  in  the  armed  contention  of  the  bel- 
ligerents. 


VIOLENCE   AGAINST  ENEMY   PERSONS  169 

§  108.  Every  combatant  may  be  killed  or  womided,  Killing 
whether  a  private  soldier  or  an  officer,  or  even  the  wound- 
monarch  or  a  member  of  his  family.     Some  pubUcists  ^  g^^^"/ 
assert  that  it  is  a  usage  of  warfare  not  to  aim  at  a  sove-  batants. 
reign  or  a  member  of  his  family.     Be  that  as  it  may, 
there  is  in  strict  law  ^  no  rule  preventing  the  kilhng  and 
wounding  of  such  illustrious  persons.     But  combatants 
may  only  be  killed  or  wounded  if  they  are  able  and 
willing  to  fight  or  to  resist  capture.     Therefore,  com- 
batants disabled  by  sickness  or  wounds  may  not  be 
killed.     Further,  such  combatants  as  lay  down  their 
arms  and  surrender,  or  do  not  resist  being  made  prisoners, 
may  neither  be  killed  nor  wounded,  but  must  be  given 
quarter.     These  rules  are  universally  recognised,  and 
are  now  expressly  enacted  by  Article  23(c)  of  the  Hague 
Regulations,   although   the   fury  of   battle  frequently 
makes  individual  fighters  ^  forget  and  neglect  them. 

§  109.  However,  the  rule  that  quarter  must  be  given  Refusal  of 
has  exceptions.  Although  it  has  of  late  been  a  cus- 
tomary rule  of  International  Law,  and  although  the 
Hague  Regulations  now  expressly  stipulate  by  Article 
23{d)  that  belhgerents  are  prohibited  from  declaring 
that  no  quarter  will  be  given,  quarter  may  neverthe- 
less be  refused  to  members  of  a  force  who  continue  to 
fire  after  having  hoisted  the  white  flag  as  a  sign  of 
surrender ;  further,  by  way  of  reprisal  *  for  violations 
of  the  rules  of  warfare  committed  by  the  other  side ; 
and,  thirdly,  in  case  of  imperative  necessity,  when  the 

^  See     Kliiber,     §    245 ;     G.     F.  and   who   said    that   the    defenders 

Martens,  ii.  §  278  ;  Heffter,  §  126.  were  within   their   right,   ought  to 

"  Says  Vattel,  iii.  §  159:  'Mais  ce  settle  the  point, 
n'est   point    une    loi    de   la   guerre,  '  See  Baty,  International  Law  in 

d'^pargner    en    toute    rencontre    la  South  Africa  (1900),  pp.   84-85,  and 

personne  du  roi  ennemi ;   et  on  n'y  the  many  charges  made  by  belliger- 

est  oblig6  que  quand  on  a  la  facility  ents  in  the  World  War  against  their 

de  le  f aire  prisonnier. '    The  example  adversaries. 

of  Charles  xii.   of   Sweden   (quoted  *  See    Pradier-Fod6r6,    vii.    Nos. 

by   Vattel),   who  was   intentionally  2800-2801,  who  opposes  this  principle, 

fired   at   by   the  defenders    of    the  but  discusses  the  subject  in  a  very 

fortress  of  Thorn,  besieged  by  him,  detailed  way  ;  and  Spaight,  p.  89. 


170  WARFARE   ON  LAND 

granting  of  quarter  would  so  encumber  a  force  with 
prisoners  that  its  own  security  would  thereby  be  vitally 
imperilled.^  But  it  may  well  be  doubted  whether 
under  modern  conditions  of  civihsed  warfare  such  a 
case  of  imperative  necessity  can  ever  arise,  and  it  must 
be  emphasised  that  the  mere  fact  that  numerous  prisoners 
cannot  safely  be  guarded  and  fed  ^  by  the  captors,  or  that 
prisoners  might  regain  their  Hberty  through  an  impend- 
ing success  of  their  own  army,  does  not  justify  a  refusal 
of  quarter  unless  vital  danger  to  the  captors  is  involved. 
The  former  rules  that  quarter  could  be  refused  to  the 
garrison  of  a  fortress  carried  by  assault,  to  the  defenders 
of  an  mifortified  place  against  an  attack  of  artillery, 
and  to  a  weak  garrison  which  obstinately  and  uselessly 
persevered  in  defending  a  fortified  place  against  over- 
whelming enemy  forces,  are  now  obsolete. 
Lawful  §  110.  As  already  mentioned,  Article  22  of  the  Hague 
i?niawfui  Regulations  stipulates  expressly  that  the  right  of 
Means  of  belligerents  to  adopt  means  of  injuring  the  enemy  is  not 
and  unlimited.     Some  means  are  expressly  prohibited  by 

ing  Com-  treaties  ;  others  are  condemned  by  custom.  But  apart 
batants.  from  those  expressly  prohibited  by  treaties  or  by  custom, 
all  means  of  killing  and  wounding  that  exist,  or  may  be 
invented,  are  lawful.  And  it  matters  not  whether  the 
means  used  are  directed  against  single  individuals,  as  are 
swords  and  rifles,  or  against  large  bodies  of  individuals, 
as  are,  for  instance,  shrapnel,  GatHngs,  and  mines. 
On  the  other  hand,  all  means  are  unlawful  that  render 
death  inevitable  ^  or  that  needlessly  aggravate  the 
sufferings  of  woimded  combatants.  A  customary  rule 
of  International  Law,  also  expressly  enacted  by  Article 
23(e)  of  the  Hague  Regulations,  prohibits,  therefore, 

^  See    Payrat,    Ld   Priaonnier  de  free  British  soldiers  whom  they  had 

Guerre  (1910),  pp.  191-220,  and  Latid  captured. 

War/are,  §  80.  "*  There    are    indications    in    the 

^  Accordingly,  the  Boers  frequently  author's    manuscript    that    he    had 

during  the  South  African  War  set  intended  to  reconsider  this  statement. 


VIOLENCE   AGAINST   ENEMY   PERSONS  171 

the  employment  of  poison  and  of  such  arms,  projectiles, 
and  material  ^  as  cause  unnecessary  injury. ^  Accord- 
ingly :  wells,  pumps,  rivers,  and  the  like  from  which  the 
enemy  draws  drinking  water  must  not  be  poisoned  ;  ^ 
poisoned  weapons  must  not  be  made  use  of ;  *  rifles 
must  not  be  loaded  with  bits  of  glass,  irregularly  shaped 
iron,  nails,  and  the  Hke  ;  cannons  must  not  be  loaded 
with  chain  shot,  crossbar  shot,  red-hot  balls,  and  the 
like.  Another  customary  rule,  also  enacted  by  Article 
23(6)  of  the  Hague  Eegulations,  prohibits  any  treacherous 
way  of  kiUing  and  wounding  combatants.  Accordingly  : 
no  assassin  must  be  hired,  and  no  assassination  of  com- 
batants be  committed  ;  a  price  may  not  be  put  on  the 
head  of  an  enemy  individual ;  proscription  and  out- 
lawing are  prohibited ;  no  treacherous  request  for 
quarter  must  be  made  ;  no  treacherous  simulation  of 
sickness  or  wounds  is  permitted. 

§  111.  In  1868  a  conference  met  at  St.  Petersburg  Explosive 
for  the  examination  of  a  proposition  made  by  Russia 
with  regard  to  the  use  of  explosive  projectiles  in  war. 
The  representatives  of  seventeen  Powers  signed,  on 
December  11,  1868,  the  so-called  Declaration  of  St. 
Petersburg,^  which  stipulates  that  the  signatory  Powers, 

*  In  1915,  during  tlie  World  War,        it  must  be  condemned.      See  Pari. 

the  Germans  used  so-called   '  flame        Papers,    Cd.    830(3,    pp.    74-78,    and 

projectors  ' — see  details  in  Garner,  i.        Garner,  i.  §  190. 

§189 — which  thi'ew  burning  liquid  on  .  „,,       ^■a    ■  c        ■„,„.„ a 

f,            V,  >.     ^      c  i^v,                    Tu  J^he  diffusion  of  poisonous  and 

the  combatants  or  the  enemy,     ihere  u         i-                  c           „i,„.i„v.^  ^., 

J     u^  tu  i  iu-            /•      ■  asphyxiating  gases  from  cylinders  or 

is  no  doubt  that  this  practice  is  un-  ^.f        •      ^.r      u           ^     .-;i„„  /„,u;^u 

,      c  ,    V                -it  otherwise  than  by  proiectiles  (which 

lawful,   because   it  causos     unneces-  .    ,■             i  v  i         ^  1 1 o\     „     „„„4-;^« 

.  '.         ,  is  discussed  below,  §  \\6) — a  practice 

sary  injury.  instituted  by  the  Germans  during  the 

'  As  to  the  controversy  between  i^t    ^^  \^7       i         it    i     ;„   n^Z.^^^ 

^\.       TT   -t    1     Oi.  ^  1    /-I  World  War  (see  details  in  (earner, 

the     Umted    States    and    Germany  .    ocionioo\        u  *-u      „♦■  „,4(-i,;« 

1     •      i.1.    TIT    ij  TTT         u  i-v.       u  i-  1.  s§  180-183) — whether  or  not  within 

during  the  World  War  whether  shot-  ,,  i   v.  ■         r  . ,  „*'„„;„„„ 

^  c  .\.-        .  the  prohibition  of  the  use  or     poison 

guns  were  arms  of  this  category,  see  ^  .  ,  ,  „ <-„;„„,]   ;„ 

p,  •    <;  1  -Q  &     J '  or  poisoned  weapons     contained  in 

uarner   1   9  l/J.  ,,      ,  •   ,  Article  23(a)  of    the  Hague  Regula- 

Is  it  lawful  to  poison  the  drink-  , .         ,       2        i  •  u    ^i  <-v, \.„a 

.  J  J         i-      ■  t    1  tions  (as  to  which    the   author  had 

ing  water,  provided  a  notice  IS  posted  ,  •    •      \      „„„   ;ii„„oi 

*  •  f  '  r  . ,  4-1  4.  4.U  expressed  no  opinion),  was  illegal 
up  informing  the  enemv  that  the  ,  ^  .,  ^  ,  \„^^„^„„^■„  4-^ 
water  has  been  poisoned?  The  ^^^^^^^  '^  «^PP^^^  combatants  to 
German  commander  in  South-West  "^necessary  sutfenng. 

Africa  attempted  to  justify  such  a  *  See   above,    vol.    i.    §   562,   and 

practice  during  the  World  War;  but       Martens,  N.R.G.,  xviii.  p.  474. 


172  WARFARE   ON   LAND 

and  those  who  should  accede  later,  renounce  in  case 
of  war  between  themselves  the  employment,  by  their 
mihtary  and  naval  forces,  of  any  projectile  of  a  weight 
below  400  grammes  (14  ounces)  which  is  either  ex- 
plosive, or  charged  with  fulminating  or  inflammable 
substances.  This  engagement  is  obligatory  only  upon 
the  contracting  Powers,  and  it  ceases  to  be  so  in  case 
a  non-contracting  Power  takes  part  in  a  war  between 
any  of  the  contracting  Powers. 
Expand-  §  112.  As  Great  Britain  had  introduced  bullets  manu- 
pfrnf "^^  factured  at  the  Indian  arsenal  of  Dum-Dum,  near 
Bullets.  Calcutta,  the  hard  jacket  of  which  did  not  quite  cover 
the  core,  and  which  therefore  easily  expanded  and 
flattened  in  the  human  body,  the  First  Hague  Con- 
ference adopted  a  declaration,  signed  on  Jrdy  29,  1899, 
by  fifteen  Powers,  stipulating  that  they  should  abstain, 
in  case  of  war  between  two  or  more  of  them,  from  the 
use  of  bullets  which  expand  or  flatten  easily  in  the 
human  body,  such  as  bullets  with  hard  envelopes  which 
do  not  entirely  cover  the  core,  or  are  pierced  with  in- 
cisions.^ 
Pro-  §  113.  The  First  Hague  Conference  also  adopted  a 

Sling  declaration,  signed  on  July  29,  1899,  by  sixteen  States, 
Asphyxia-  stipulating  that  the  signatory  Powers  should,  in  a  war 
Deieteri-  bctwcen  two  or  morc  of  them,  abstain  from  the  use  of 
°^^  ^*^^^' projectiles  the  sole  object  of  which  is  the  diffusion  of 

asphyxiating  or  deleterious  gases.^ 
Violence       §  H^-  The  First  Hague  Conference  had  adopted  like- 
from  Air  ^^®  ^  declaration,  signed  on  July  29,  1899,  prohibiting 
Vessels.    j(yr  a  term  of  five  years  the  launching  of  projectiles  or 

^  During    the    World    War    the  or  that  it  was  in  fact  used  except 

belligerents  charged  one  another  with  perhaps  in  occasional  instances.' 
using  these  bullets.     See  details  in 

Garner,    i.     §    177,    who    considers  *  During  the  World  War,  however, 

that  (§  178)  '  the  evidence  at  hand  Germany  introduced  such  shells,  and 

.  .  .  does    not    indicate    that    any  her  adversaries  also  used  them  by 

general  use  of  [this  type  of  bullet]  way  of   reprisals.      See    details    in 

was  authorised  by  any  belligerent.  Garner,  i.  §  188. 


VIOLENCE   AGAINST  ENEMY  PERSONS  173 

explosives  from  balloons  or  other  kinds  of  aerial  vessels. 
The  Second  Hague  Conference,  on  October  18,  1907, 
had  renewed  this  declaration  uf  to  the  close  of  the  Third 
Hague  Conference,  but  out  of  twenty-seven  States  which 
signed  it  only  a  few — (among  them  Great  Britain  and  the 
United  States  of  America) — had  ratified  it  before  the 
World  War,  and  Germany,  France,  Italy,  Japan, 
Russia — not  to  mention  smaller  Powers — did  not  even 
sign  it.  When  the  World  War  broke  out,  not  one  of 
the  Central  Powers  had  ratified  the  declaration  ;  its 
provisions  were  not  binding,  and  were  not  observed.^ 

§115.  It  will  be  remembered^  that  nimaerous  indi- violence 
viduals   belong  to   armed  forces  without  being  com-  Non"com- 
batants.     Now,  since  and  in  so  far  as  these  non-com-  \^^^^} 

Members 

batant  members  of  armed  forces  do  not  take  part  of  Armed 
in  the  fighting,  they  may  not  directly  be  attacked 
and  killed  or  wounded.  However,  they  are  exposed 
to  all  injuries  indirectly  resulting  from  the  operations 
of  warfare.  And,  with  the  exception  of  the  personnel  ^ 
engaged  in  the  interest  of  the  wounded,  such  as  doctors, 
chaplains,  persons  employed  in  military  hospitals, 
official  ambulance  men,  who,  according  to  Articles  9 
and  10  of  the  Geneva  Convention,  are  specially  privi- 
leged, such  non-combatant  members  of  armed  forces 
may  certainly  be  made  prisoners,  since  the  assistance 
they  give  to  the  fighting  forces  may  be  of  great  im- 
portance. 

§  116.  Whereas    in    former  ^    times    private    enemy  violence 
persons  of  either  sex  could  be  killed  or  otheTwise  badly  pfivaS 
treated  according  to  discretion,  and  whereas  in  especial  Enemy 

.  Persons. 

the  inhabitants  of  fortified  places  taken  by  assault 
used  to  be  abandoned  to  the  mercy  of  the  assailants, 
in  the  eighteenth  century  it  became  a  imiversally  recog- 
nised customary  rule  of  the  Law  of  Nations  that  private 

1  See  below,  §  214o.  *  See  below,  §  121. 

*  See  above,  §  79.  *  See  Grotius,  ill.  c.  4,  §§  6,  9. 


174  WARFARE   ON  LAND 

enemy  individuals  should  not  be  killed  or  attacked. 
In  so  far  as  they  do  not  take  part  in  the  fighting,  they 
may  not  be  directly  attacked  and  killed  or  wounded. 
They  are,  however,  like  non-combatant  members  of 
the  armed  forces,  exposed  to  all  injuries  indirectly 
resulting  from  the  operations  of  warfare.  Thus,  for 
instance,  when  a  town  is  bombarded,  and  thousands  of 
inhabitants  are  thereby  killed,  or  when  a  train  carry- 
ing private  individuals  as  well  as  soldiers  is  wrecked 
by  a  mine,  no  violation  of  the  rule  prohibiting  attack 
on  private  enemy  persons  has  taken  place. 

As  regards  captivity,  the  rule  is  that  private  enemy 
persons  may  not  be  made  prisoners  of  war.^  But  this 
rule  has  exceptions  conditioned  by  the  carrying  out 
of  certain  mihtary  operations,  the  safety  of  the  armed 
forces,  and  the  order  and  tranquilHty  of  occupied 
enemy  territory.  Thus,  for  instance,  influential  enemy 
citizens  who  try  to  incite  their  fellow- citizens  to  take 
up  arms  may  be  arrested  and  deported  into  captivity. 
Ajid  even  the  whole  population  of  a  province  may  be 
imprisoned  in  case  a  levy  en  masse  is  threatening.^ 

But  if  a  levy  en  masse  is  not  threatening,  an  occupant 
has  no  right  to  take  into  captivity^  private  enemy 
individuals  of  mihtary  age,  although,  of  course,  he 
can  resort  to  measures  of  restraint  to  prevent  them 
from  escaping  and  joining  the  forces  of  the  enemy, 
and  can  punish  them  if  they  attempt  to  do  so. 

Apart  from  captivity,  restrictions  of  all  sorts  may 

^  This   statement   refers   only   to  may  not  be   detained   as   prisoners 

the  treatment  of  private  enemy  in-  of  war,  whether  they  render  these 

dividuals  by  an  invader  and  has  no  services  voluntarily  or  are   requisi- 

reference   to   enemy  subjects  found  tioned  or  hired.    See  La7id  War/are, 

by  a  belligerent  on  his  own  territory  §  58  n.  (a). 

at  the  outbreak  of  war.     See  above,  *  When  in  1914,  during  the  World 

8  iQO  War,  the  Germans  took  into  captivity 

2  Civilians  who  render  assistance  all  men  of  military  age  in  Belgium 

to    the    enemy    as    drivers,    or    as  and   the   occupied   part   of   France, 

labourers  to  construct  fortifications  Great  Britain  and   France  resorted 

or  siege  works,  or  in  a  similar  way,  if  to  reprisals.     See  below,  §  413,  and 

captured  while  they  are  so  engaged,  Wehberg,  p.  315. 


VIOLENCE   AGAINST   ENEMY   PERSONS  175 

be  imposed  upon,  and  means  of  force  may  be  applied 
against,  private  enemy  persons  for  many  purposes  ; 
such  as  keeping  order  and  tranquillity  on  occupied 
enemy  territory  ;  prevention  of  any  hostile  conduct, 
especially  conspiracies  ;  prevention  of  intercourse  with, 
and  assistance  to,  the  enemy  forces ;  securing  the 
fulfilment  of  commands  and  requests  of  the  military 
authorities,  such  as  those  for  the  provision  of  drivers, 
hostages,  farriers  ;  securing  compliance  with  requisi- 
tions and  contributions,  and  securing  the  execution 
of  pubhc  works  necessary  for  mihtary  operations,  such 
as  the  building  of  soldiers'  quarters,  roads,  bridges, 
and  the  like ;  provided  the  requisitioned  services  do 
not  make  part  of  the  mihtary  operations.^ 

What  kinds  of  violent  means  may  be  applied  for 
these  purposes  is  in  the  discretion  of  the  military 
authorities,  who  will  act  according  to  expediency, 
and  the  rules  of  martial  law  estabhshed  by  the  belli- 
gerents. But  there  is  no  doubt  that,  if  necessary, 
capital  punishment  and  imprisoimient  ^  are  lawful 
means  for  these  purposes.  The  limits  within  which 
violence  may  be  applied  to  private  individuals  in  modern 
warfare  find  expression  in  Article  46  of  the  Hague 
Regulations  :  '  family  honour  and  rights,  individual 
lives  ^  and  private  property,  as  well  as  reHgious  con- 
victions and  liberty,  must  be  respected.' 

^  Can  private  enemy  persons   be  from    the  peaceful   population ;    see 

compelled    to    build    fortifications,  below,  §§  170,  259. 

construct    trenches,    and    the    like?  ^  That  the  lives  of  civilians  must 

The  matter  is  not  settled   in  prac-  be  respected  is  a  principle  so  univer- 

tice.      See    below,    §  170.     See   also  sally  recognised,  that  the  following 

Holland,    War,  No.  77  ;    Spaight,  p.  case  has  roused  the  indignation  of 

151  ;    Ferrand,    Des  Requisitions   en  the  whole  civilised  world.     It  was 

mati^re  de  Droit  international  public  published  by  the  Miinchner  Neueste 

(1917),   p.  60;    Garner  in  A.J.,   xi.  Nachrichten  on  October  7,  1914.     A 

(1917),  p.  111.  German  lieutenant,  giving  an  account 

"  That,  in  case  of  general  devasta-  of  the  occupation  of  St.  Di6,  at  the 

tion,  the  peaceful  population  maj'  be  end  of  August  1914,  by  the  Germans, 

detained  in  so-called  concentration  relates  that  a  German  column  had 

camps,  there  is  no  doubt ;  see  below,  entered  the  town  and  had  barricaded 

§   154.      And   there   is   likewise   no  itself  into  a  house  to  await  reinforce- 

doubt  that  hostages  may  be  taken  ments;  he  then  continues :   'We  had 


176 


WARFARE   ON   LAND 


Violence 
against 
the  Head 
of  the 
Enemy 
State  and 
against 
Officials 
in  Im- 
portant 
Positions. 


§  117.  The  head  of  the  enemy  State  and  officials  in 
important  posts,  in  case  they  do  not  belong  to  the 
armed  forces,  occupy,  so  far  as  their  UabiUty  to  direct 
attack,  death,  or  woimds  is  concerned,  a  position 
similar  to  that  of  private  enemy  persons.  But  they 
are  so  important  to  the  enemy  States,  and  they  may 
be  so  useful  to  the  enemy  and  so  dangerous  to  the 
invading  forces,  that  they  may  certainly  be  made 
prisoners  of  war.  If  a  beUigerent  succeeds  in  obtaining 
possession  of  the  head  of  the  enemy  State  or  its  cabinet 
ministers,  he  will  certainly  remove  them  into  cap- 
tivity. And  he  may  do  the  same  with  diplomatic 
agents  and  other  officials  of  importance,  because,  by 
weakening  the  enemy  Government,  he  may  thereby 
influence  the  enemy  to  agree  to  terms  of  peace. 


Ill 


TREATMENT   OF  WOUNDED,   AND  DEAD  BODIES 

Hall,  §  130— Westlake,  ii.  pp.  72-76— Lawrence,  §  165— Maine,  pp.  156-159— 
Manning,  p.  205 — Phillimore,  iii.  §  95 — Halleck,  ii.  pp.  36-39 — Moore, 
vii.  §  1134— Taylor,  §§  527-528— Hershey,  Nos.  369-374— Bluntschli, 
§§  586-592— Lueder  in  ffoltzendorff,  iv.  pp.  289-318,  398-421— Liszt, 
§  40,  v.— Ullmann,  §  178,  and  in  R.G.,  iv.  (1897),  pp.  437-445— Bonfils, 
Nos.  1108-1118'— Despagnet,  Nos.  551-554— Pradier-Fod6r6,  vi.  No. 
2794,  vii.  Nos.  2849-2881— Rivier,  ii.  pp.  268-273— Nys,  iii.  pp.  499- 
510— Calvo,  iv.  §§  2161-2165— Fiore,  iii.  Nos.  1365-1372,  and  Code, 
Nos.  1594-1609— Martens,  ii.  §  114— Longuet,  §§  85-90,  92-93— M^rignhac, 
iii".    pp.     186-240— Pillet,    pp.    165-192— Kriegsbrauch,    p.    25— Land 


arrested  three  civilians,  and  a  good 
idea  occurred  to  me.  They  were  put 
on  chairs,  and  told  to  go  and  sit  in 
the  middle  of  the  street.  Little  by 
little  one  becomes  terribly  hard. 
Well,  there  they  sat  in  the  street. 
How  many  prayers  of  anguish  they 
uttered  I  do  not  know,  but  their 
hands  were  clasped  as  though  with 
cramp.  I  am  sorry  for  them,  but  the 
method  was  immediately  efficacious. 
The  fire  from  the  houses  on  our  flanks 
weakens  immediately,   and  we   are 


able  to  occupy  the  opposite  house 
and  so  are  masters  of  the  principal 
street.'  The  officer  then  explains 
how  St.  Di6  was  cleared  of  the  enemy, 
and  adds  :  '  As  I  learned  afterwards, 
the  reserve  regiment  which  entered 
St.  Di6  more  to  the  north  had  experi- 
ences quite  like  ours.  The  four 
civilians  whom  they  compelled  to  sit 
in  the  street  were  killed  by  French 
bullets.  I  myself  saw  them  lying  in 
the  middle  of  the  street  near  the 
hospital.' 


I 


TREATMENT   OF   WOUNDED,    AND   DEAD   BODIES       177 

Warfare,  §§  174-220— Zorn,  p.  122— Bordwell,  pp.  249-277— Spaight, 
pp.  419-460— Higgins,  pp.  35-38— Holland,  Studies,  pp.  61-65— Holland, 
War,  Nos.  41-60— 'iarner,  i.  §§  313-318— Gurlt,  Zur  Getchichte  der  inter- 
luUicmaleii  und  freiwillirfen  Krankenpflege  (1873) — Lueder,  Die  Genfer 
Convention  (1876) — Moynier,  La  Croix  rouge,  son  Passd  et  son  Avenir 
(1882);  La  Revition  de  la  Convention  de  Genive  (1898);  La  Fondation 
de  la  Croix  rouge  (1903) — Buzzatti,  De  VEmploi  abuaif  .  .  .  de  la 
Croix  rouge  (1890) — Triepel,  Die  neuesten  Fortschritte  auf  dem  Gebiet 
dea  Kriegsrechts  (1894),  pp.  1-41 — Miiller,  Entstehxmgsgeschichte  de* 
rothen  Kreuzes  und  der  Genfer  Konvention  (1897) — Miinzell,  Unter- 
suchungen  iiber  die  Genfer  Konvention  (1901) — Gillot,  La  Revision  de  la 
Convention  de  Geneve,  etc.  (1902) — Meurer,  Die  Genfer  Konvention 
und  ihre  Reform  (1906) — Schneider,  Die  Genfer  Konvention  (1911) — 
Roszkowski  in  R.I.,  2nd  Ser.  iv.  (1902),  pp.  199,  299,  442— Delpech  in 
R.G.,  xiii.  (1906),  pp.  629-724— Macpherson  in  Z.V.,  v.  (1911),  pp. 
253-277. 

§  118.  Although,^  since  the  seventeenth  century,  Origin  of 
several  hundred  special  treaties  have  been  concluded  con^en. 
between  different  States  regarding  the  tending  of  each  ^io°- 
other's  wounded  and  the  exemption  of  army  surgeons 
from  captivity,  no  general  rule  of  the  Law  of  Nations 
on  these  points  was  in  existence  until  the  second  half 
of  the  nineteenth  century,  other  than  one  prohibiting 
the  kiUing,  mutilation,  or  ill-treatment  of  the  wounded. 
A  change  for  the  better  was  initiated  by  Jean  Henry 
Dunant,  a  Swiss  citizen  from  Geneva,  who  was  an 
eye-witness  of  the  battle  of  Solferino  in  1859,  where 
many  thousands  of  wounded  died  who  could,  under 
more  favourable  circumstances,  have  been  saved.  When 
he  pubhshed,  in  1861  and  1863,  his  pamphlet,  Un 
Souvenir  de  Solferino,  the  Geneva  Societe  d'Utihte 
PubUque,  under  the  presidency  of  Gustave  Moynier, 
created  an  agitation  in  favour  of  better  arrangements 
for  tending  the  wounded  on  the  battlefield,  and  con- 
voked an  international  congress  at  Geneva  in  1863, 
where  thirty-six  representatives  of  nearly  all  the 
European  States  met  and  discussed  the  matter.  In 
1864  the  Bundesrath,  the  Government  of  the  Federal 
State  of  Switzerland,  took  the  matter  in  hand  officially, 

^  See  Macpherson,  op.  cit.,  p.  254. 
VOL.   II.  M 


178  WARFARE   ON  LAND 

and  invited  all  European,  and  several  American,  States 
to  send  official  representatives  to  a  congress  at  Geneva 
for  the  purpose  of  discussing  and  concluding  an  inter- 
national treaty  regarding  the  wounded.  This  congress 
met  in  1864,  and  twelve  States  were  represented.  Its 
result  was  the  Convention  ^  for  the  Amehoration  of 
the  Condition  of  Soldiers  wounded  in  Armies  in  the 
Field  (commonly  called  '  Geneva  Convention '),  signed 
on  August  22,  1864.  By  and  by  States  other  than  the 
original  signatories  joined  the  convention,  and  finally 
all  the  civiHsed  States  of  the  world,  with  the  excep- 
tion of  Costa  Rica,  Monaco,  and  Lichtenstein,  became 
parties.  That  its  rules  were  in  no  wise  perfect,  and 
needed  to  be  supplemented  regarding  many  points, 
soon  became  apparent.  A  second  international  congress 
met  at  the  invitation  of  Switzerland  in  1868  at  Geneva, 
where  additional  articles  ^  to  the  original  conven- 
tion were  discussed,  and  signed.  These  additional 
articles  were,  however,  never  ratified.  The  First 
Hague  Conference  in  1899  unanimously  formulated 
the  wish  that  Switzerland  should  shortly  take  steps 
for  the  meeting  of  another  international  congress  to 
revise  the  Geneva  Convention.  This  congress  assembled 
in  June  1906,  and  on  July  6,  1906,  a  new  Geneva  Con- 
vention ^  was  signed  by  the  representatives  of  thirty- 
five  States,  including  all  the  Great  Powers.  No  less 
than  twenty-six  of  these  States  ratified  the  convention, 
and  at  least  eight  others  have  acceded. 

The  new  convention  consisted  of  thirty-three  articles, 
and  provided  rules  for  the  treatment  of  the  wounded 
and  the  dead ;  and  rules  concerning  mihtary  hospitals 
and  mobile  medical  units  ;  the  personnel  engaged  in  the 
interest  of  the   wounded,  including  army  chaplains ; 

^  See  Martens,  N.R.G.,  xviii.  p.        612. 
607,  and  above,  vol.  i.  §  560.  ^  See  Martens,  X.R.G.,  SrdSer.  ii. 

*  See  Martens,  X.R.G.,  xviii.  p.       p.  620,  and  Treaty  Ser.  (1907),  No.  15. 


TREATMENT   OF   WOUNDED,    AND   DEAD   BODIES        179 

the  material  belonging  to  mobile  medical  units,  military 
hospitals,  and  voluntary  aid  societies ;  convoys  of 
evacuation ;  the  distinctive  emblem ;  the  carrying 
out  of  the  convention ;  and  the  prevention  of  abuses 
and  infractions. 

In  the  final  protocol  the  conference  expressed  a 
desire  that,  in  order  to  arrive  at  a  unanimous  inter- 
pretation of  the  convention,  the  parties  should,  so  far 
as  the  cases  and  the  circumstances  permitted,  submit 
to  the  International  Court  of  Arbitration  at  the  Hague  ^ 
any  differences  which  in  time  of  peace  might  arise 
between  them  concerning  its  interpretation ;  but 
Great  Britain  and  Japan  refused  to  become  parties 
to  this. 

When  the  World  War  broke  out,  almost  all  the 
beUigerents  were  parties  to  the  convention,  but  not 
quite  all ;  and  it  was  provided  by  Article  24  that  it 
ceases  to  be  binding  in  any  war  from  the  moment  when 
a  State  which  is  not  a  party  to  it  becomes  a  beUi- 
gerent.  However,  all  the  belligerents  were  parties  to 
the  old  convention  of  1864,  which  remained  in  force 
between  those  Powers  which  were  parties  to  it  without 
being  parties  to  the  convention  of  1906.^  None  the 
less,  the  provisions  of  both  conventions  were  often 
violated  during  the  war.^  The  main  rules  of  the  con- 
vention of  1906  are  as  follows  *  : — 

§  119.  According  to  Articles  1-5,  sick  or  wounded  The 
persons    belonging,    or   officially   attached,    to    armies  andThe* 
must  be  respected  and  cared  for,  without  distinction  sick. 
of  nationahty,  by  the  belKgerent  in  whose  power  they 
may  be.     Should,  however,  a  beUigerent  be  compelled 

^  See  above,  vol.  i.  §  472.  technical    military    character,     and 

-  See  above,  vol.  i.  ?  560.  ^^  ^^  impossible  in  a  general  treatise 

to  enter  into  details.     Readers  who 


318. 


See  details  in  Garner,  i.  §§  318-        tate  a  deeper  interest  in  them  must 


be    referred    to   the    most    valuable 


*  The  stipulations  of  the  conven-        article   by  Macpherson  in  Z.V.,   v. 
tion   are    for    the    most    part   of  a       (1911),  pp.  253-277. 


180  WARFARE   ON   LAND 

to  abandon  them  to  the  enemy,  he  must,  so  far  as 
mihtary  exigencies  permit,  leave  behind  with  them  a 
portion  of  his  medical  personnel  to  assist  in  taking  care 
of  them,  together  with  the  necessary  material.     The 
sick  and  wounded  who  have  fallen  into  the  hands  of 
the  enemy  are  prisoners  of  war,  but  belhgerents  may 
exchange  or  release  them,  or  even  hand  them  over  to  a 
neutral  State,  which  has  to  intern  them  until  after  the 
conclusion  of  peace.     After  each  engagement,  the  com- 
mander in  possession  of  the  field  must  have  search 
made  for  the  wounded,  and  must  take  measures  to 
protect   them   against   pillage   and   maltreatment.     A 
nominal  roll  of  all  wounded  and  sick  who  have  been 
collected  must  be  sent  as  early  as  possible  to  the  autho- 
rities of  the  country  or  army  to  which  they  belong, 
and  the  belligerents  must  keep  each  other  mutually 
informed  of  any  internments  and  changes  as  well  as 
of  admissions  into  hospital.     Article  5  stipulates  that 
the  mihtary  authority  may  appeal  to  the  charitable 
zeal  of  the  inhabitants  to  collect  and  take  care  of  the 
wounded  and  sick  of   the  armies  under  his  direction, 
granting  to  those  who  have  responded  to  his  appeal 
special  protection  and  certain  immunities. 
Medical        §  120.  In   Order   that   the   wounded   and   sick   may 
ESush^  receive  proper  treatment,   mobile  medical  units,   and 
ments,      fixed  ^  estabHshmcnts  of  the  medical  service,  must  be 
Aiateriai.  rcspcctcd  and  protected  by  the  belligerents  ;    but  this 
protection  ceases  if  they  are  made  use  of  to  commit 
acts  harmful  to  the  enemy,  such  as  sheltering  com- 
batants, carrying  on  espionage,  and  conceahng  arms 
and  ammunition  (Articles  6  and  7).^ 

^  It   was  one   of  the  saddest  ex-  x.  (1918),  p.  499. 
perienceg   of  the   World   War  that  ^  But  Article   8  expressly  enacts 

German     airmen      frequently     and  that  the  units  and  establishments  do 

deliberately  bombed  hospitals  of  the  not   forgo   protection  : — (a)    because 

Allies,  and  that  a  German  publicist  the   personnel  are    armed,    and  use 

attempted  to  justify  this  abominable  their  arms  for   their  own  defence, 

practice.     See   KoUreuter   in  Z.  V. ,  or  for  the  defence  of  ythe  wounded 


TREATMENT   OF  WOUNDED,    AND   DEAD   BODIES        181 

As  regards  material,  a  distinction  is  drawn  between 
material  of  mobile  medical  units,  of  fixed  medical 
establishments,  and  of  voluntary  aid  societies. 

{a)  Mobile  medical  units  which  fall  into  the  hands 
of  the  enemy  must  not  be  deprived  of  their  material, 
including  their  teams,  whatever  may  be  the  means  of 
transport,  and  whoever  may  be  the  drivers  employed 
(Article  14).  The  competent  mihtary  authority  is, 
however,  permitted  to  make  use  of  the  material  in 
captured  medical  units  for  the  treatment  of  the  wounded 
and  the  sick  at  hand,  but  it  must  be  restored  under 
the  same  conditions,  and  so  far  as  possible  at  the  same 
time,  as  the  medical  personnel.^ 

(6)  The  buildings  and  material  of  fixed  medical 
establishments  which,  because  the  locahty  where  they 
are  is  mihtarily  occupied,  fall  into  the  hands  of  the 
enemy,  remain,  according  to  Article  15,  '  subject  to 
the  laws  of  war."  That  means  that  they  remain  en- 
tirely in  the  power  of  the  captor.  But  they  may  not 
be  diverted  from  their  medical  purpose  so  long  as  they 
are  required  for  the  wounded  and  sick.  Should,  how- 
ever, urgent  military  necessity  demand  it,  a  commander 
may  dispose  of  them,  provided  he  makes  previous 
arrangements  for  the  welfare  of  the  wounded  and  sick 
found  in  them. 

(c)  The  material  of  voluntary  aid  societies,  which 
are  duly  recognised,  is, .  according  to  Article  16,  con- 
sidered private  property,  and  must,  therefore,  be 
respected  as  such  under  all  circumstances,  although 
it  may  be  requisitioned. 

§  121.  The    personnel    engaged    exclusively    in    the  Personnel, 
collection,  transport,   and  treatment  of  the  wounded 

and  sick  ;  (6)  because  in  default  of  and     cartridges,     taken     from     the 

armed  orderlies,  units  or  establish-  wounded,  and  not  yet  handed  over 

ments   are    guarded   by  pickets,    or  to  the  proper  department,  are  found 

by  sentinels  furnished  with  authority  there, 

in  due  form  ;   (c)  because   weapons  ^  See  below,  §  121. 


182  WAEFARE   ON  LAND 

and  sick,  and  also  in  the  administration  of  mobile 
medical  units  and  establishments,  the  chaplains  attached 
to  armies,  and,  lastly,  pickets  and  sentinels  guarding 
medical  units  and  estabhshments,  must,  according  to 
Article  9,  under  all  circumstances  ^  be  respected  and 
protected.  If  they  fall  into  the  hands  of  the  enemy, 
they  must  not  be  treated  as  prisoners  of  war.  Accord- 
ing to  Article  12,  however,  they  are  not  free  to  act  or 
move  without  let  or  hindrance ;  for  they  are  to  con- 
tinue to  carry  on  their  duties  under  the  direction  of 
the  captor,  until  their  assistance  is  no  longer  indis- 
pensable. They  must  then  be  sent  back  to  their  army, 
or  to  their  country,  at  such  time,  and  by  such  route, 
as  may  be  compatible  with  mihtary  exigencies.  They 
must  be  allowed  to  take  with  them  such  effects,  in- 
struments, arms,  and  horses  as  are  their  private 
property.  2 

The  personnel  of  voluntary  aid  societies  employed 
in  the  medical  units  and  estabhshments  is,  accord- 
ing to  Article  10,  privileged  to  the  same  extent  as 
the  official  personnel,  provided  that  the  society  con- 
cerned is  duly  recognised  and  authorised  by  its  Govern- 
ment and  its  personnel  is  subject  to  mihtary  law  and 
regulations.  Each  State  must  notify  to  the  other, 
before  actually  emplopng  them,  the  names  of  societies 
which  it  has  authorised  to  render  assistance  to  the 
regular  medical  service  of  its  armies.^ 

^  Does    this   article    prevent    the  in  his  own  army, 
punishment  of  such  persons  by  the 

enemy     for    so-called    war-crimes?  ^  A     recognised     voluntary     aid 

Strupp  inZ.I.,  xxv.   (1915),  p.  357,  society  of  a,  neutral  country  cannot, 

says  '  no'  ;  but  there  is  no  reason  to  according  to  Article  11,    afford  the 

accept  this  answer  as  correct.     See  assistance  of   its  personnel   and    its 

Markman   in   Z.V.,  xi.   (1918),    pp.  units  to  a  belligerent  unless  it   has 

76-83.  previously   received   the  consent  of 

*  So   long  as   they  are    detained  its    own    Government    and    of    the 

by  the  enemy  he  must,  according  to  belligerent  concerned  ;   and  a  belli- 

Article   13,   grant    them    the   same  gerent   who  accepts  such  assistance 

allowances   and   pay  as  are  due  to  is  bound,  before  making  any  use  of 

personnel    holding   the    same    rank  it,  to  give  notice  to  the  enemy, 


TREATMENT   OF  WOUNDED,    AND   DEAD  BODIES        183 

§  122.  Convoys    for   evacuating    the   wounded    and  Convoys 
sick  must  be  treated  in  the  same  way  as  mobile  medical  ation.**^" 
units,  but  subject  to  the  following  special  provisions 
of  Article  17  :— 

A  belligerent  intercepting  a  convoy  may,  if  mihtary 
exigencies  demand,  break  it  up,  provided  that  he 
takes  charge  of  the  sick  and  wounded  who  are  in  it. 
In  this  case,  the  obligation  to  send  back  the  medical 
personnel  when  their  assistance  is  no  longer  indis- 
pensable, extends  also  to  the  mihtary  personnel  detailed 
for  the  transport  or  the  protection  of  the  convoy,  and 
furnished  with  an  authority  in  due  form  to  that  effect ; 
and  the  obligation  to  restore  the  medical  material 
extends  to  railway  trains  and  inland  boats  which  are 
specially  arranged  for  evacuating  sick  and  wounded, 
and  to  material  belonging  to  the  medical  service 
and  used  for  fitting  up  ordinary  vehicles,  trains,  and 
boats  for  the  transport  of  the  wounded.  Mihtary 
vehicles,  other  than  those  of  the  medical  service,  may, 
however,  be  captured  with  their  teams ;  and  the 
civilian  personnel  and  the  various  means  of  transport 
obtained  by  requisition,  including  railway  material 
and  boats  used  for  convoys,  are  subject  to  the  general 
rules  of  International  Law. 

§  123.  According  to  Article  18,  the  Swiss  heraldic  Distinc- 
device  of  the  red  cross  on  a  white  ground,  formed  by  Emblem, 
reversing  the  federal  colours,  is  adopted  as  the  emblem 
and  distinctive  sign  of  the  medical  service  of  the  armies, 
but  there  is  no  objection  to  the  adoption  of  another 
emblem  by  non-Christian  States  which  object  to  the 
cross  on  rehgious  grounds.  Thus  Turkey  has  sub- 
stituted a  red  crescent,  and  Persia  a  red  sun.^  The 
following  are  the  rules  concerning  the  use  of  this 
emblem : — 

(1)  It  must  be  shown,  with  the  permission  of   the 

^  See  below,  §  207. 


184  WARFARE   ON  LAND 

competent  military  authority  (Article  19),  on  the  flags, 
the  armlets  (brassards),  and  on  all  the  material  belong- 
ing to  the  medical  service. 

(2)  Medical  units  and  estabhshments  fly  the  red 
cross  flag  accompanied  by  the  national  flag  of  the 
belhgerent  to  which  they  belong  (Article  21).^ 

(3)  All  the  personnel,  according  to  Article  20,  wear, 
on  the  left  arm,  an  armlet  (brassard)  with  a  red  cross 
on  a  white  ground,  stamped  by  the  competent  military 
authority.^ 

(4)  The  red  cross  on  a  white  ground  and  the  words 
'  Red  Cross  '  or  '  Geneva  Cross  '  must  notf  according 
to  Articles  23  and  27,  be  used,  either  in  peace  or  war, 
except  to  indicate  the  protected  medical  units,  estab- 
hshments, personnel,  and  material.^ 

Treat-  §  124.  Accordiug  to  a  customary  rule  of  the  Law  of 

the  Dead.  Natious,  bclhgerents  have  the  right  to  demand  from 
one  another  that  dead  soldiers  shall  not  be  disgrace- 
fully treated,  and,  in  particular,  that  they  shall  not  be 
mutilated,  but  shall  be,  so  far  as  possible,  collected  and 
buried  *  or  cremated  on  the  battlefield  by  the  victor. 
The  Geneva  Convention  does  not  stipulate  any  rule 
concerning  the  collection  and  burial  or  cremation  of 
the  dead  ;  but  Article  3  enacts  that,  after  each  engage- 
ment, the  commander  in  possession  of  the  field  must 
take  measures  to  ensure  protection  of  the  dead  against 
pillage  and  maltreatment,  and  that  bodies  must  be 
carefully  examined,  in  order  to  see  that  life  is  really 
extinct,  before   they  are  buried   or   cremated.     Each 

^  But  medical  units  while  in  the  attached  to  the  medical  service  who 

hands   of   the    enemy   fly   only  the  do  not  wear  the  nulitary  luiiform. 

red   cross.      Neutral   medical  units  3  „      ,    ,        „  ,„. 

rendering  assistance   in  accordance  ^®®  below,  S  IZIa. 

with  the  convention,  fly,  along  with  *  See   Grotius,   ii.  c.   19,  §§  1,  3. 

the  red  cross  flag,  the  national  flag  Regarding  a  valuable  suggestion  by 

of    the   belligerent   to   whose   army  UUmann   concerning  sanitary  mea- 

they  are  attached  (Article  22).  sures   for   the  purpose   of   avoiding 

*  Accompanied  by  a  certificate  of  epidemics,  see  above,  vol.  i.  p.  764, 

identity,    in    the    case    of    persons  n.  4. 


TREATMENT  OF  WOUNDED,    AND   DEAD   BODIES        185 

belligerent  must  send,  as  soon  as  possible,  to  the 
authorities  of  the  country  or  army  to  which  they  belong 
the  mihtary  identification  marks  or  tokens  found  on 
the  dead  (Article  4).  Pieces  of  equipment  found  upon 
the  dead  of  the  enemy  are  public  enemy  property,  and 
may,  therefore,  be  appropriated  as  booty  ^  by  the  victor. 
On  the  other  hand,  letters,  money,  jewellery,  and 
other  articles  of  value,  found  upon  the  dead  on  the 
battlefield,  or  on  those  who  die  in  the  medical  units 
or  fixed  estabhshments,  which  are  apparently  private 
property,  are  not  booty,  but  must,  according  to  Article 
4  of  the  Geneva  Convention  and  Article  14  of  the  Hague 
Regulations,  be  collected  and  handed  over  to  the 
bureau  of  information  ^  concerning  prisoners  of  war, 
which  has  to  transmit  them  to  the  persons  interested 
through  the  authorities  of  their  own  country. 

§  124a.  By  Article  27,  Governments  whose  represen-  Preven- 
tatives  signed  the  convention,  but  whose  legislation  was  Abuse! 
not  then  adequate  for  the  purpose,  undertook  to  take, 
or  introduce  in  their  legislatures,  the  measures  necessary 
to  prevent,  at  all  times,  the  employment  of  the  emblem 
or  the  name  of  *  Red  Cross  '  or  '  Geneva  Cross  '  by 
private  individuals  or  by  societies  other  than  those 
entitled  to  use  them.  The  Governments  had  likewise 
to  take,  or  introduce  in  their  legislatures,  in  the  event 
of  their  mihtary  law  being  inadequate,  measures  neces- 
sary for  the  repression  in  time  of  war  of  individual 
acts  of  pillage  and  maltreatment  of  the  wounded  and 
sick,  and  also  for  the  punishment  of  the  improper  use 
of  the  Red  Cross  flag  and  armlet  (brassard)  (Article 
28).3 

*  See  below,  §  139.  servation  against  Articles  23,  27,  and 

I  c»    u  1         £>  1  on  28  ;  but  by  the  Geneva  Convention 

bee  below,  §  130.  a    '.     mn    /i    «,   o  /->  of\\ 

'  Act,    1911    (1    &   2   Geo.    v.    c.  20), 

_'  By  reason   of  the   uncertainties  Great  Britain  was  enabled  to  carry 

of  parliamentary  proceedings,  Great  out    their    stipulations.     This    Act 

Britain,  in  signing  and  ratifying  the  imposes  a  penalty  for  the  improper 

Geneva   Convention,    entered   a   re-  use  of  the  '  Geneva  Cross. ' 


186 


WARFARE   ON   LAND 


IV 


CAPTIVITY 


Grotius,  iii.  c.  7  and  c.  14 — Bynkershoek,  Quaesticmes  Juria  publici,  i.  c.  3 
— Vattel,  iii.  §§  148-154— Hall,  §§  131-134— Westlake,  ii.  pp.  67-72— 
Lawrence,  §  164— Maine,  pp.  160-167— Manning,  pp.  210-222— Philli- 
more,  iii.  §  95— Twiss,  ii.  §  177— Halleck,  ii.  pp.  19-30— Taylor,  §§ 
519-524— Hershey,  Nos.  355-368— Moore,  vii.  §§  1127-1131— Wharton, 
iii.  §§  348-348d— Wheaton,  §  344— Bluntschli,  §§  593-626— Heflfter, 
§§  127-129— Lueder  in  Holtzendorff,  iv.  pp.  423-445— Ullmann,  §  177— 
Bonfils,  Nos.  1119-1140— Despagnet,  Nos.  544-550— Pradier-Fod6r6, 
vii.  Nos.  2796-2842,  and  \-iii.  No.  3208— Rivier,  ii.  pp.  273-279— Nys, 
iii.  pp.  511-530— Cairo,  iv.  §§  2133-2157— Fiore,  iii.  Nos.  1355-1362, 
and  Code,  Nos.  1572-1593— Martens,  ii.  §  113— Longuet,  §§  77-83— 
M6rignhac,  iii".  pp.  156-186 — Pillet,  pp.  145-164 — Kriegsbrauch,  pp. 
11-18— Zorn,  pp.  73-122— Bordwell,  pp.  237-248— LoTid  Warfare,  §§ 
54-116— Spaight,  pp.  260-319— Holland,  War,  Nos.  24-40— Gamer,  i. 
§§  331-360 — Eichelmann,  ther  die  Kriegsgefangenschaft  (1878) — Rom- 
berg, Det  Belligerants  et  des  Priaonniers  de  Guerre  (1894) — Triepel,  Die 
neuetten  Fortachritte  auf  dem  Gebiet  dea  Kriegsrechta  (1894),  pp.  41-55 — 
Holls,  The  Peace  Conference  at  the  Hague  (1900),  pp.  145-151 — Cros, 
Condition  et  Traitement  des  Prisonniera  de  Guerre  (1900) — Beinhauer, 
Die  Kriegsgefangetischaft  (1908) — Payrat,  Le  Priaonnier  de  Guerre  dant 
la  Guerre  continentale  (1910) — Davis  in  A.  J.,  vii.  (1913),  pp.  521-545. 

Develop-       §  125.  During  antiquity,  prisoners  of  war  could  be 
^temV    killed,   and   they  were  very  often   at    once   actually 
^^^^       butchered  or  offered  as  sacrifices  to  the  gods.     If  they 
regarding  were  Spared,  they  were  as  a  rule  made  slaves,   and 
ap  ivity.  ^^y.  exceptionally  liberated.     But  belligerents  also  ex- 
changed their  prisoners,  or  Hberated  them  for  ransom. 
During  the  first  part  of  the  IVIiddle  Ages  prisoners  of 
war  could  likewise  be  killed  or  made  slaves.     Under 
the  influence  of   Christianity,   however,   their  fate  in 
time   became   mitigated.    Although   they   were   often 
most  cruelly  treated  during  the  second  part  of  the 
Middle  Ages,  they  were  not  as  a  rule  killed  ;   and,  with 
the  disappearance  of  slavery  in  Europe,  they  were  no 
longer  enslaved.     By  the  time  modem  International 
Law  gradually  came  into  existence,  IdlHng  and  enslaving 
prisoners  of  war  had  disappeared ;   but  they  were  still 


CAPTIVITY  187 

often  treated  as  criminals,  and  as  objects  of  personal 
revenge.  They  were  not  considered  in  the  power  of 
the  State  by  whose  forces  they  were  captured,  but  in 
the  power  of  those  forces  themselves,  or  of  the  indi- 
vidual soldiers  that  had  made  the  capture ;  and  it 
was  considered  lawful  for  captors  to  make  as  much 
profit  as  possible  out  of  their  prisoners  by  way  of 
ransom,  if  no  exchange  of  prisoners  took  place.  So 
general  was  this  practice  that  a  more  or  less  definite 
scale  of  ransom  became  usual.  Thus,  Grotius^  men- 
tions that  in  his  time  the  ransom  of  a  private  was  the 
amount  of  his  pay  for  one  month.  And  since  the 
pecuniary  value  of  a  prisoner  as  regards  ransom  rose 
in  proportion  with  his  fortune  and  his  position  in  life 
and  in  the  enemy  army,  it  became  usual  for  prisoners 
of  rank  and  note  not  to  belong  to  the  capturing  forces 
but  to  the  sovereign,  who  had,  however,  to  recom- 
pense the  captors.  During  the  seventeenth  century, 
the  custom  of  considering  prisoners  to  be  in  the  power 
of  their  captors  died  away.  They  were  now  con- 
sidered to  be  in  the  power  of  the  sovereign  by  whose 
forces  they  were  captured.  But  rules  of  the  Law  of 
Nations  regarding  their  proper  treatment  were  hardly 
in  existence.  The  practice  of  liberating  prisoners  in 
exchange,  or  for  ransom  only,  continued.  Special 
cartels  were  often  concluded  at  the  outbreak  of,  or 
during,  a  war,  for  the  purpose  of  stipulating  a  scale 
of  ransom  according  to  which  either  belhgerent  could 
redeem  his  soldiers  and  officers  from  captivity.  The 
last  2  instance  of  such  a  cartel  is  that  between  England 
and  France  in  1780,  stipulating  the  ransom  for  members 
of  the  naval  and  miHtary  forces  of  both  belUgerents. 

It  was  not  until  the  eighteenth  century,  with  its 
general  tendencies  to  mitigate  the  cruel  practices  of 
warfare,   that  matters  changed  for  the   better.     The 

*  iii.  0.  14,  §  9.  *  See  Hall,  §  134. 


188  WARFARE   ON  LAND 

conviction  in  time  became  general  that  captivity  should 
only  be  the  means  of  preventing  prisoners  from  return- 
ing to  their  corps  and  taking  up  arms  again,  and  should, 
as  a  matter  of  principle,  be  distinguished  from  imprison- 
ment as  a  punishment  for  crimes.  The  Treaty  of 
Friendship  ^  concluded  in  1785  between  Prussia  and 
the  United  States  of  America  was  probably  the  first 
to  stipulate  (Article  24)  proper  treatment  for  prisoners 
of  war,  prohibiting  confinement  in  convict  prisons  and 
the  use  of  irons,  and  insisting  upon  their  confinement 
in  a  healthy  place,  where  they  may  have  exercise,  and 
where  they  may  be  kept  and  fed  as  troops.  During 
the  nineteenth  century,  the  principle  that  prisoners 
of  war  should  be  treated  by  their  captor  in  a  manner 
analogous  to  that  meted  out  to  his  own  troops  became, 
generally  recognised,  and  the  Hague  Regulations,  by 
Articles  4  to  20,  enacted  exhaustive  rules  regarding 
captivity.  These  rules  were  drawn  up  in  time  of  peace 
before  the  World  War,  and  they  are  still  vahd  at  the 
close  of  the  World  War.  But  the  experiences  of  that 
war  disappointed  many  hopes  founded  upon  them. 
Treat-  §  126.  Accordiug  to  Articles  4-7  and  16-19  of  the 

Prisoners  Haguc  Regulations,  prisoners  of  war  are  not  in  the 
of  War.  power  of  the  individuals  or  corps  who  capture  them, 
but  of  the  Government  of  the  captor.  They  must  be 
humanely  2  treated.  All  their  personal  belongings 
remain  their  property,  with  the  exception  of  arms, 
horses,  and  mihtary  papers,  which  are  booty  ;  ^    and 

^  See  Martens,  R. ,  pt.  ii.  iv.  p.  37.  habitually   refused    them   food   and 

*  The      treatment      meted      out,  drink.     See  The  Times  History  and 

during  the  World  War,  to   British  Encyclopaedia  of  the  War,\i.  (1916), 

prisoners  in  the  hands  of  the  Germans  pp.  241  -280 ;  M'Carthy,  The  Prisoner 

was  in  many  cases  not  only  in  direct  of  War  in  Germany  (1918)  ;    Garner, 

violation  of  the  Hague  Regulations  i.    §§    331-360;    and    the    following 

and    not    humane,     but    shameful.  Pari.   Papers:   Misc.,  No.  3  (1918), 

The  treatment  of  wounded  British  Cd.  8984;  Misc.,  No.  19  (1918),  Cd. 

prisoners   on  their  way  to   German  9106;  Misc.,  No.  27  (1918);  Misc., 

camps  or  hospitals  was  in  numerous  No.  28  (1918). 
cases  particularly  cruel,  all  the  more 
so   as    German    Red    Cross    nurses  '  See  below,  §  144. 


CAPTIVITY  189 

in  practice  ^  personal  belongings  are  understood  to  in- 
clude military  uniform,  clothing,  and  kit  required  for 
personal  use,  although  technically  they  are  Government 
property.'-^  They  may  only  be  imprisoned  as  an  un- 
avoidable matter  of  safety,  and  only  while  the  circum- 
stances which  necessitate  the  measure  continue  to 
exist.  They  may,  therefore,  be  detained  in  a  town, 
fortress,  camp,  or  any  other  locahty,  and  may  be 
bound  not  to  go  beyond  a  certain  fixed  boundary  ; 
but  they  may  not  be  kept  in  convict  prisons.  The 
labour  of  prisoners  of  war  who  are  not  officers  may  be 
utihsed  by  the  Goveriunent  according  to  their  rank 
and  aptitude ;  but  their  tasks  must  not  be  excessive 
and  must  have  nothing  to  do  with  mihtary  operations.^ 
Work  done  by  them  for  the  State  must  be  paid  for  in 
accordance  with  tariffs  in  force  for  soldiers  of  the 
national  army  employed  on  similar  tasks,  or,  in  case 
there  are  no  such  tariffs  in  force,  at  rates  proportional 
to  the  work  executed.  But  prisoners  of  war  may 
also  be  authorised  to  work  for  other  branches  of  the 
pubhc  service,  or  for  private  persons,  under  condi- 
tions of  employment  to  be  settled  by  the  mihtary 
authorities,  and  they  may  likewise  be  authorised  to 
work  on  their  own  account.  All  wages  they  receive 
go  towards  improving  their  position,  and  the  balance 
must  be  paid  to  them  at  the  time  of  their  release, 
after  deducting  the  cost  of  their  maintenance.*  But 
whether  they  earn  wages  or  not,  the  Government  is 

^  See  Land  Warfare,  §  69.  enemy  ci\'ilians  can  be  forced  to  do 

*  Charges  were  made  that  the  Ger-  such  work.     See  above,  §  1 16  n. ,  and 

mans  during  the  World  War  often  below,  §  170.    See  also  Holland,  War, 

deprived  prisoners  of  their  overcoats,  No.    26  ;    Pillet,    p.    155  ;    Spaight, 

and  Garner  (i.  §  342)  finds  that  the  p.  212. 

truth  of  the  charges  was  substanti-  ■•  For  the  extent  to  which  prisoners 

ated  in  some  instances  by  the  reports  of  war  were  compelled  or  enabled  to 

of  neutral  inspectors.  work    by    the    various    belL'gerents 

'  The  question  whether  prisoners  during  the  World  War,  the  nature 

of  war  can  be  compelled  to  construct  of  their  tasks,  and  the  scales  of  their 

fortifications,  and  the  like,  is  just  as  remuneration,  see  Garner,  i.  §§  350- 

controverted  as  the  question  whether  353. 


190 


WARFARE   ON  LAND 


bound  under  all  circumstances  to  maintain  them,  and, 
failing  a  special  agreement  between  the  belhgerents,  to 
provide  quarters,^  food,^  and  clothing  ^  for  them  on  the 
same  footing  as  for  its  own  troops.  Officer  prisoners 
must  receive  the  same  pay  "*  as  officers  of  corresponding 
rank  in  the  country  where  they  are  detained,  the  amount 
to  be  repaid  by  their  Government  after  the  conclusion 
of  peace.  All  prisoners  of  war  must  enjoy  every  lati- 
tude in  the  exercise  of  their  rehgion,  including  attend- 
ance at  their  own  church  service,  provided  only  that 
they  comply  with  the  regulations  for  order  issued  by  the 
military  authorities.  If  a  prisoner  wants  to  make  a 
will,  it  must  be  received  by  the  authorities  or  drawn 
up  on  the  same  conditions  as  for  soldiers  of  the  national 
army.  And  the  same  rules  are  vahd  regarding  death 
certificates  and  the  burial  of  prisoners  of  war,  and  due 
regard  must  be  paid  to  their  grade  and  rank.  Letters, 
money  orders,  valuables,  and  postal  parcels  destined  for, 
or  despatched  by,  prisoners  of  war  must  enjoy  free 
postage,  and  gifts  and  rehef  in  kind  for  them  must  be 
admitted  free  from  all  customs  and  other  duties  as 
well  as  payments  for  carriage  by  Government  rail- 
ways ^  (Article  16). 


^  For  details  as  to  the  quarters 
provided  for  oflScer  prisoners  of  war 
during  the  World  War,  see  Garner, 
i.  §  336  ;  and  as  to  the  quarters  for 
other  prisoners  of  war,  see  Garner,  i. 
§§  337-341. 

*  For  details  as  to  the  food  supplied 
to  prisoners  bj'  the  various  belliger- 
ents during  the  World  War,  see 
Garner,  i.  Si?  343-347,  who  concludes, 
with  regard  to  prisoners  of  war  in 
Germany,  that'  had  it  not  been  for  the 
enormous  quantities  of  food  that  were 
sent  from  England  and  France  ...  it 
is  not  improbable  that  many  prisoners 
would  have  died  of  starvation.' 

*  Fordetails  as  toclothing  supplied 
to  prisoners  by  the  various  belliger- 
ents during  the  World  War,  see 
Garner,  i.  §  342,  who  concludes,  with 


regard  to  prisoners  in  Germany,  that 
'The  reports  of  the  representatives 
of  the  American  Embassy  substan- 
tiate in  a  number  of  instances  the 
charges  made  against  the  Germans  in 
respect  to  the  insufficient  supply  of 
clothing.' 

*  During  the  World  War  the 
British  Government  was  prepared  to 
carry  out  this  stipulation  of  Article 
17  of  the  Hague  Regulations,  but 
the  German  Government  refused. 
See  The  Times  History  and  Encyclo- 
paedia of  the  War,  vi.  p.  263.  See 
also  Garner,  i.  §  335. 

^  For  the  manner  in  which  the 
various  belligerents  in  the  World 
War  carried  out  these  provisions, 
see  Garner,  i.  g§  348-349. 


CAPTIVITY  191 

§  127.  Every    individual    who    is    deprived    of    his  who  may 
liberty,  not  for  a  crime,  but  for  military  reasons,  has  ^"j^ 
a  claim  to  be  treated  as  a  prisoner  of  war.     Article  13  Pnsonera 
of  the  Hague  Regulations  expressly  enacts  that  non-  ° 
combatant  ^  members  of  armed  forces,  such  as  news- 
paper   correspondents,    reporters,    sutlers,    and    con- 
tractors, who  are  captured  and  detained,  may  claim 
to  be  treated  as  prisoners  of  war,  provided  that  they 
can  produce  a  certificate  from  the  mihtary  authorities 
of   the   army   which   they   were   accompanying.     The 
Hague   Regulations  do  not  contain  anything  regard- 
ing the  treatment  of  private  enemy  individuals,   and 
enemy  officials,   whom  a  belligerent  thinks  it    neces- 
sary ^  to  make  prisoners  of    war ;    but   it   is  evident 
that  they  may  claim  all  the  privileges  of  such  prisoners. 
They  are  not  con\dcts,  but  are  taken  into  captivity 
for   military  reasons,    and  are  therefore  prisoners   of 
war. 

And  the  same  is  valid  w^ith  regard  to  enemy  ci^alians 
who  at  the  outbreak  of  war  are  on  the  territory  of  a 
belhgerent,  and,  for  mihtary  reasons,  are  interned. 
They  are  not  convicts  either,  but  are  deprived  of  their 
Hberty  for  mihtary  reasons  only,  and  are  therefore 
prisoners  of  war.^ 

§  128.  Articles  8  and  9  of  the  Hague  Regulations  dis- 
lay  down  the  discipline  to  be  observed  in  the  case  of  °^p^®" 
prisoners  of  war  : — Every  prisoner  who,  if  questioned, 
does  not  declare  his  true  name  and  rank  is  Hable  to 
a  curtailment  of  the  advantages  accorded  to  prisoners 
of  his  class.  All  prisoners  are  subject  to  the  laws, 
regulations,  and  orders  in  force  in  the  army  of  the 
belhgerent  that  keeps  them  in  captivity.  Any  act 
of  insubordination  on  the  part  of  prisoners  may  be 

*  See  above,  §  79.  author's  Introduction  to  Roxburgh, 
'  See  above,  §§  116,  117.  The   Prisoners  of   War  Information 

*  See    above,     §     100,     and    the       Bureau  in  London  (1915). 


192  WARFARE   ON  LAND 

punished  in  accordance  with  these  laws,^  but  apart 
from  these  laws,  all  kinds  of  severe  measures  are  admis- 
sible to  prevent  a  repetition  of  such  acts.  Escaped 
prisoners,  who,  after  having  rejoined  their  national 
army,  are  again  taken  prisoners,  are  not  Hable  to  any 
punishment  for  their  fhght.  But  if  they  are  recap- 
tured before  they  succeed  in  rejoining  their  army,  or 
before  they  have  quitted  the  territory  occupied  by 
the  capturing  forces,  they  are  liable  to  disciplinary 
punishment.^ 
Release  §  129.  Articles  10  to  12  of  the  Hague  Regulations 
on  Parole,  ^^g^j  ^-^j^  rclcasc  ou  parolc  ^  in  the  following  manner  : — 
No  belhgerent  is  obhged  to  assent  to  a  prisoner's  request 
to  be  released  on  parole,  and  no  prisoner  may  be  forced 
to  accept  such  release.  But  if  the  laws  of  his  country 
authorise  him  to  do  so,  and  if  he  acquiesces,  any 
prisoner  may  be  released  on  parole.  In  such  a  case 
he  is  in  honour  bound  scrupulously  to  fulfil  the  engage- 
ment he  has  contracted,  both  as  regards  his  own 
Government,  and  the  Government  that  released  him. 
And  his  own  Government  is  formally  bound  neither 
to  request,  nor  to  accept,  from  him  any  service  incom- 
patible with  the  parole  given.  Any  prisoner  released 
on  parole  and  recaptured  bearing  arms  against  the 
belhgerent  who  released  him,  or  against  his  aUies, 
forfeits  the  privilege  of  being  treated  as  a  prisoner  of 
war,  and  may  be  tried  by  court-martial.  The  Hague 
Regulations  do  not  lay  down  the  punishment  for  such 
a  breach  of  parole ;  but  according  to  a  customary 
rule  of  International  Law  the  punishment  may  be 
capital. 

^  Concerning  the  question  whether  taken     against    prisoners     by    the 

after   conclusion  of  peace  such  pri-  various  belligerents  during  the  World 

soners  as  are  undergoing  a  term  of  War,  see  Garner,  i.  354.                   ~ 
imprisonment    for    offences   against 

discipline     may    be    detained,    see  *  See      Knorr,     Das     Ehrmwort 

below  §  275.  Kriegsgefangener  in  neiner  geachicht- 

*  For  the    disciplinary    measures  lichen  Entwickelung  (1916). 


CAPTIVITY  193 

§  130.  According  to  Articles  14  and  16  of  the  Hague  Bureau  of 
Regulations  every  belligerent,  and  likewise  a  neutral  maUon. 
State  which  receives  and  detains  members  of  the 
armed  forces  of  the  belhgerents,  must  institute  on  the 
commencement  of  war  a  bureau  of  information  rela- 
tive to  prisoners  of  war.  This  bureau  is  intended  to 
answer  all  inquiries  about  prisoners.  It  must  be 
furnished  by  all  the  services  concerned  with  all  the 
necessary  information  to  enable  it  to  make  out,  and 
keep  up  to  date,  a  separate  return  for  each  prisoner, 
and  it  must,  therefore,  be  kept  informed  of  intern- 
ments and  changes  as  well  as  of  admissions  into  hospital, 
of  deaths,  releases  on  parole,  exchanges,  and  escapes. 
It  must  state  in  its  return  for  each  prisoner  the  regi- 
mental number,  surname  and  name,  age,  place  of 
origin,  rank,  unit,  wounds,  date  and  place  of  capture, 
of  internment,  of  the  wounds  received,  date  of  death, 
and  any  observations  of  a  special  character.  This 
separate  return  must,  after  conclusion  of  peace,  be 
sent  to  the  Government  of  the  other  belligerent. 

The  bureau  must  hkewise  receive  and  collect  all 
objects  of  personal  use,  valuables,  letters,  and  the  hke, 
found  on  battlefields,^  or  left  by  prisoners  who  have 
been  released  on  parole,  or  exchanged,  or  who  have 
escaped,  or  died  in  hospital  or  ambulances,  and  must 
transmit  these  articles  to  those  interested.  The  bureau 
must  enjoy  the  privilege  of  free  postage.^ 

§  131.  A   new   and   valuable   rule,   taken   from   the  Relief 
Brussels   Declaration,    was   introduced   by   Article   15   °^^®*^®^- 
of  the  Hague  Regulations,  which  makes  it  a  duty  for 
every  belhgerent  to  grant  facihties  to  relief  societies 
to  serve  as  intermediaries  for  charity  to  prisoners  of 
war.     The  condition  of  the  admission  of  such  societies 

*  See  above,  §  124.  established   by   Great    Britain,    see 

•  Such  bureaux  were  set  up  at  the  Roxburgh,     The   Prisoners   of   War    , 
outbreak   of   the  World    War ;    see  Information     Bureau     in      London 
Garner,  i.  §  332.    As  to  the  bureau  (1915). 

VOL.   II.  N 


194  WARFARE   ON  LAND 

and  their  agents  is  that  the  former  are  regularly  con- 
stituted in  accordance  with  the  law  of  their  country. 
Delegates  of  such  societies  may  be  admitted  to  the 
places  of  internment  for  the  distribution  of  rehef,  as 
also    to    the    halting-places    of    repatriated    prisoners, 
through  a  personal  permit  of  the  military  authorities, 
provided  they  give  an  engagement  in  writing  that  they 
will   comply  with   all  regulations  by  the  authorities 
for  order  and  poHce. 
Prisoners      §  131a.  Thcsc  rulcs  of   the  Hague  Convention  had, 
dJS^heas  has  been  said,  been  laid  down  in  time  of  peace; 
^o^^^      and  in  war  the  attitude  of  belligerents  towards  prisoners 
is  liable  to  change.^    All  the  States  involved  in  the 
World  War  charged  one  another  with   violating  the 
Hague  Regulations  by  the  maltreatment  of   prisoners 
of  war,  and  at  an  early  stage  they  arranged  for  in- 
spection by  a  neutral  representative  of  the  camps  on 
their   territory. ^    The   reports   of   the   inspectors   dis- 
closed conditions  at  certain  times  in  certain  German 
camps  which  were  very  bad,  and  made  it  clear  that 
almost  everywhere  in  Germany  prisoners  were  sufiering 
great  hardships  through  insufficient  food  and  clothing. 
The  reports  on  British  and  French  camps  were  almost 
uniformly  satisfactory.      None  the  less,  Germany  dis- 
beheved  them,  and  resorted  to  reprisals  for  the  alleged 
maltreatment  of  German  prisoners,  while  the  Alhes,  in 
their   turn,   feared   that   conditions   in   the   camps   in 
Germany   were  even  worse   than  appeared   from   the 
reports.      Whatever  may   be    the   value  as   evidence 
of    some    of    the    charges,    undoubtedly    the    Hague 
Kegulations  were  grievously  violated  by  Germany  in 
letter  and  in  spirit. 

During  1916,  Great  Britain,  France,  and  Germany 

^  See  an  address  by  Lord  Justice  ^  See  details  in  Gamer,  i.  §§  333- 

Younger  in  The  Times  of  May  31,       334, 
1920. 


CAFnVITY  195 

mutually  agreed  to  transfer  to  Switzerland,  for  intern- 
ment there,  wounded  prisoners  and  those  suffering 
from  certain  diseases,  and  to  repatriate  certain  classes 
of  interned  civihans.  Germany  and  Russia  later  reached 
an  agreement  for  the  repatriation  of  incapacitated 
prisoners.  In  1918,  France  and  Germany  arranged  to 
repatriate  those  combatant  prisoners  (other  than  officers) 
who  had  been  long  in  captivity  and  were  over  a  given 
age,  and  a  similar  agreement  between  Great  Britaia 
and  Germany  was  under  negotiation  when  hostihties 
ended.  ^ 

But  these  measures  brought  relief  to  comparatively 
few,  and  the  position  of  the  far  greater  number  of 
prisoners  who  did  not  belong  to  these  categories  was 
still  exercising  all  the  belhgerent  Governments  at 
the  close  of  hostihties.  To  secure  better  treatment 
for  American  prisoners,  the  United  States  had  induced 
Germany  to  send  delegates  to  Berne,  and  there,  on 
November  11,  1918,  an  agreement  was  signed  con- 
cerning prisoners  of  war,  sanitary  personnel,  and  civil 
prisoners.^  Although  this  agreement  was  not  ratified, 
because  hostihties  came  to  an  end  through  the  general 
armistice  of  the  same  date,  it  is  epoch-making. 

§  132.  Captivity  can  come  to  an  end  in  different  End  of 
ways.  Apart  from  release  on  parole,  and  exchange,  ^^P^'^'^y- 
which  have  already  been  mentioned,  it  comes  to  an 
end — (1)  through  simple  release  without  parole ;  (2) 
through  successful  flight ;  (3)  through  liberation  by 
an  invasion  of  the  army  to  which  the  prisoners  belong ; 
(4)  through  prisoners  ^  being  brought  into  neutral 
territory  by  captors  who  take  refuge  there  ;  and,  lastly 
(5),  through  the  war  coming  to  an  end.  Release  of 
prisoners  for  ransom  is  no  longer  practised,  except  in 

*  See  details  in  Garner,  i.  §  357-        101,  and  Supplement,  pp.  1-72. 
360. 

*  See  A.J.,  xiii.    (1919),  pp.   97-  '  See  below,  §  337. 


196  WARrARE   ON  LAND 

the  case  of  the  crew  of  a  captured  merchantman  released 
on  a  ransom  bill.^  But  the  practice  of  ransoming 
prisoners  might  be  revived  if  convenient,  provided  that 
the  ransom  is  to  be  paid,  not  to  the  indi\ddual  captor, 
but  to  the  belhgerent  whose  forces  made  the  capture. 

As  regards  the  end  of  captivity  through  the  war 
coming  to  an  end,  a  distinction  must  be  made  accord- 
ing to  the  different  modes  of  ending  war.  If  the  war 
ends  by  peace  being  conckided,  captivity  comes  to 
an  end  at  once  ^  with  the  conclusion  of  peace,  and,  as 
Article  20  of  the  Hague  Regulations  expressly  enacts, 
the  repatriation  of  prisoners  must  be  effected  as  speedily 
as  possible.  If,  however,  the  war  ends  through  con- 
quest and  annexation  of  the  vanquished  State,  captivity 
comes  to  an  end  as  soon  as  peace  is  estabhshed.  It 
ought  to  end  with  annexation,  and  it  will  in  most 
cases  do  so.  But  as  guerilla  war  may  well  go  on  after 
conquest  and  annexation,  and  thus  prevent  a  condi- 
tion of  peace  from  being  estabhshed,  although  real 
warfare  is  over,  it  is  necessary  not  to  confound  annexa- 
tion with  peace.^  The  point  is  of  interest  regarding 
such  prisoners  only  as  are  subjects  of  neutral  States. 
For  other  prisoners  become,  through  annexation,  subjects 
of  the  State  that  keeps  them  in  captivity,  and  that 
State  is,  therefore,  so  far  as  International  Law  is  con- 
cerned, unrestricted  in  taking  any  measure  it  hkes 
with  regard  to  them.  It  can  repatriate  them ;  and 
it  will  in  most  cases  do  so.  But  if  it  thinks  that  they 
might  endanger  its  hold  over  the  conquered  territory, 
it  might  Ukewise  prevent  their  repatriation  for  any 
definite  or  indefinite  period.'* 

^  See  below,  §  195.  *  See  above,  §  60. 

*  That,  nevertheless,  the  prisoners  *  Thus,  after  the  South  African 
remain  under  the  discipline  of  the  War,  Great  Britain  refused  to  re- 
captor  until  they  have  been  handed  patriate  those  prisoners  of  war  who 
over  to  the  authorities  of  their  home  were  not  prepared  to  take  the  oath 
State,  will  be  shown  below,  §  275.  of  allegiance. 


APPROPRIATION   OF  PUBLIC   ENEMY   PROPERTY      197 


APPROPRIATION   AND    UTILISATION   OF   PUBLIC 
ENEMY    PROPERTY 

Grotius,  iii.  c.  5— Vattel,  iii.  §§  73,  160-164— Hall,  §§  136-138— Westlake, 
ii.  pp.  113-121 — Liiwrence,  §§  171-175 — Maine,  pp.  192-206 — Manning, 
pp.  179-183- Twiss,  ii.  §§  62-71— Halleck,  ii.  pp.  58-68— Moore,  vii.  § 
1148— Taylor,  g^  529-536— Wharton,  iii.  §  340— Wheaton,  §§  346,  352- 
354— Bluntschli,  g§  644-651a— Heffter,  §§  130-136— Lueder  in  Holtzen- 
dorff,  iv.  pp.  488-500— G.  F.  Martens,  ii.  §§  279-280— Ullmann,  §  183— 
Bonfils,  Nos.  1176-1193— Despagnet,  Nos.  592-604— Pradier-Fod^r^,  vii. 
Nos.  2989-3018— Rivier,  ii.  pp.  306-314— Nys,  iii.  pp.  252-266— Calvo, 
iv.  §§  2199-2214— Fiore,  iii.  Nos.  1389,  1392,  1393,  1470,  and  Code,  Nos. 
1562-1565— Martens,  ii.  §  120— Longiiet,  §  96— M6rignhac,  iii".  pp.  459- 
494— Fillet,  pp.  249-254— Garner,  ii.  g  liQS—Kriegshrauch,  pp.  57-60— 
Holland,  War,  Nos.  113-116— Zand  War/are,  §§  426-432— Meurer,  ii.  §§ 
65-69 — Spaight,  pp.  410-418 — Zorn,  pp.  243-270 — Rouard  de  Card,  La 
Outrre  coiitinentale  tl  la  Propriete  (1877) — Bluntschli,  Das  Beuterecht  im 
Krieg,  und  das  SeehetUerecht  iiishesondere  (1878) — Depambour,  Des  Ejfett 
de  VOccupation  en  Temps  de  Guerre  »ur  la  Propriete  et  la  Jouiasance  des 
Bieiis  publics  et  particuliers  (1900) — Wehber^,  Das  Beuterecht  im  Land 
und  Seekriege  (1909;  an  English  translation  appeared  in  1911  under 
the  title  Capture  in  War  on  Land  and  Sea) — Latifi,  Effects  of  War  on 
Property  (1909)— Huber  in  R.G.,  xx.  (1913),  pp.  657-697. 

§  133.  Under  a  former  rule  of   International  Law,  Appro- 
belligerents  could  appropriate  all  public  and  private  ^  Jf  ^^Ji^^^e 
enemy  property  which  they  found  on  enemy  territory.  Enemy 
This  rule  is  now  obsolete.     Its  place  is  taken  by  several  no^iongJr 
rules,  since  distinctions  are  to  be  made  between  move-  *!}™»s- 

'  .  sible. 

able  and  immoveable  property,  between  pubHc  and 
private  property,  and,  further,  between  different  kinds 
of  public  and  private  property.  These  rules  must  be 
discussed  seriatim. 

^  It   is   impossible  for   a  treatise  public  property,  although  the  growth 

to  go  into  historical  details,  and  to  of   a   usage    was    recognised   which 

show  the  gradual  disappearance    of  under   cextain  conditions   exempted 

the  old  rule.     Even  during  the  nine-  it  from  appropriation.     In  the  face 

teenth    century — see,    for    instance,  of  Articles  46  and  47  of  the  Hague 

G.  F.  Martens,  ii.  §  280  ;  Twiss,  ii.  Regiilations  these  assertions  have  no 

§   64  ;  Hall,  §  139 — it  was  asserted  longer  any  basis,  and  all  the  text- 

that  in  strict  law  all  private  enemy  books  of  the  nineteenth  century  are 

moveable  property  found  on  enemy  now  antiquated  with  regard  to  this 

territory    was    as    much    booty    as  matter. 


198  WARFARE   ON  LAND 

immove-       §  134.  Appropriation  of  public  immoveables  is  not 
Public      lavrfiil  so  long  as  the  territory  on  which  they  are  has 
Property,  j^q^  becomc  State  property  of  the  occupant  through 
annexation.     During  mere  mihtary  occupation  of  enemy 
territory,  a  belHgerent  may  not  sell,  or  otherwise  alienate, 
pubhc  enemy  land  and  buildings,  but  may  only  appro- 
priate their  produce.     Article  55  of  the  Hague  Eegula- 
tions   expressly   enacts   that   a   belligerent   occupying 
enemy  territory  shall  only  be  regarded  as  administrator 
and  usufructuary  of  the  pubhc  buildings,  real  property, 
forests,  and  agricultural  works  belonging  to  the  hostile 
State  and  situated  on  the  occupied  territory  ;   and  that 
he  must  protect  the  stock  and  plant,  and  administer 
them  according  to  the  rules  of  usufruct.     He  may,  there- 
fore, sell  the  crops  from  pubhc  land,  cut  and  sell  timber 
in  the  pubhc  forests,^  let  pubhc  land  and  buildings  for 
the  time  of  his  occupation,  and  the  hke.     He  is,  how- 
ever, only  usufructuary,  and  is,  therefore,  prohibited 
from  exercising  his  right  in  a  wasteful  or  neghgent  way 
so  as  to  decrease  the  value  of  the  stock  and  plant.  Thus, 
for  instance,  he  must  not  cut  down  a  whole  forest,  unless 
the  necessities  of  war  compel  him. 
Immove-       §  135.  It  must,  howcvei,  be  observed  that  only  the 
Soperty  P^oduce  of  pubhc  immoveables  belonging  to  the  State 
of  Munici- itself  may  be  appropriated,   and  not  the  produce  of 
and  of '    those  belonging  to  municipahties,  or  of  those  which, 
Chan-°"^'  although  they  belong  to  the  hostile  State,  are  per- 
tabie,  and  maneutly  set  aside  for  rehgious  purposes,  for  the  main- 
institu-     tenance  of  charitable  and  educational  institutions,  or 
tioHs.       i^j.  ^-^^  benefit  of  art  and  science.     Article  56  of  the 
Hague  Regulations  expressly  enacts  that  such  property 
is  to  be  treated  as  private  property. 

§  136.  So  far  as  the  necessities  of  war  demand,  a 
belhgerent  may  make  use  of  pubhc  enemy  buildings 

*  For    details   of    the    German   practice   during   the    World    War,    see 
Garner,  ii.  §  398. 


APPROPRIATION  OF  PUBLIC  ENEMY  PROPERTY   199 

for  all  kinds  of  purposes.  Troops  must  be  housed,  utiiisa- 
horses  stabled,  the  sick  and  wounded  nursed.  Pubhc  ylhUo 
buildings  may  in  the  first  instance,  therefore,  be  made^^^^^s"- 
use  of  for  such  purposes,  although  they  may  thereby 
be  considerably  damaged.  And  it  matters  not  whether 
the  buildings  belong  to  the  enemy  State  or  to  mimici- 
pahties,  whether  they  are  regularly  destined  for  ordinary 
governmental  and  municipal  purposes,  or  for  religious, 
educational,  scientific,  and  similar  purposes.  Thus, 
churches  may  be  converted  into  hospitals,  schools  into 
barracks,  buildings  used  for  scientific  research  into 
stables.  But  it  must  be  observed  that  such  utihsation 
of  pubhc  buildings  as  damages  them  is  justified  only  if 
it  is  necessary.  A  belligerent  who  turned  a  picture 
gallery  into  stables  without  being  compelled  thereto 
would  certainly  commit  a  violation  of  the  Law  of 
Nations. 

§  137.  Moveable  pubhc  enemy  property  may  certainly  Moveable 
be  appropriated  by  a  beUigerent,  provided  that  it  can  p^^pg^j.^y 
directly  or  indirectly  be  useful  for  mihtary  operations. 
Article  53  of  the  Hague  Regulations  unmistakably 
enacts  that  a  beUigerent  occupying  hostile  territory 
may  take  possession  of  the  cash,  funds,  realisable 
securities,  depots  of  arms,  means  of  transport,  stores, 
supphes,  apphances  (on  land,  or  at  sea,  or  in  the 
air)  adapted  for  the  transmission  of  news  or  for  the 
transport  of  persons  or  goods,  and  of  all  other  moveable 
property  of  the  hostile  State  which  may  be  used  for 
military  operations.  Thus,  a  belhgerent  is  entitled  to 
seize  not  only  the  money  and  funds  ^  of  the  hostile 
State,  munitions  of  war,  depots  of  arms,  stores 
and  supphes,    but    also   the   rolhng   stock   of    pubhc 

*  As  regards  the  funds  of  public  dem  Beuterecht   des  Feindes   (1912), 

banks,  see  Schiemann,  Rechtslage  der  especially  pp.  58-69  ;  see  also  Huber 

offentlichen    Banken    im    Kriegsj'alle.  in   R.G.,    xx.    (1913),    pp.    667-679. 

(1902),  pp.  39-64,  and  Dicker,  Unter-  As   to   the  funds  of   private  banks, 

iegl   die   Reichsbank   im   Kriegsfalle  see  below,  §  143a. 


200  WARFARE   ON   LAND 

railways  ^  and  other  means  of  transport,  and  every- 
thing and  anything  that  he  can  directly  or  indirectly 
make   use   of   for   mihtary   operations.     He  may,  for 
instance,  seize  a  quantity  of  cloth  for  the  purpose  of 
clothing  his  soldiers. 
Moveable      §  138.  But   just   as   the   produce   of   certain   pubhc 
o/Munici-  immoveables    may    not    be    appropriated,    so    certain 
paUties,     pubhc  movcablcs  may  not  be  appropriated.     For  Article 
Religious,  56  of  the  Haguc  Kegulations  exempts  the  property  of 
table,  and  municipahties,  of  religious,  charitable,  educational  insti- 
institu^     tutions,  and  of  institutions  of  science  and  art.     Thus 
tions.       the  moveable  property  of  churches,  hospitals,  schools, 
universities,  museums,  and  picture  galleries,  even  when 
belonging  to  the  hostile  State,  cannot  lawfully  be  appro- 
priated by  a  belhgerent.     As  regards  archives,  they  are 
no  doubt  institutions  for  science,  but  a  belhgerent  may 
nevertheless  seize  such  State  papers  deposited  therein  as 
are  of  importance  to  him  in  connection  with  the  war. 
Moveable      §  138a.  Such  are  the  rules  regarding  moveable  pubhc 
Property  property  found  in  enemy  territory ;    but  they  were 
thrworid^^^S  the  World  War  systematically  violated  by  the 
War.        Central  Powers,  which  carried  off  pubhc  moveable  pro- 
perty of  all  kinds,  even  though  of  no  mihtary  value, 
following  the  example  of  Napoleon  i.,  who  seized  works 
of  art  during  his  numerous  wars  and  had  them  taken 
to  the  galleries  of  Paris.     But  just  as  the  property 
seized  by  Napoleon  had  to  be  restored  to  its  former 
owners  in  1815,  the  property  taken  away  by  the  Central 
Powers  had  to  be  restored  under  the  Armistices  and 
the  Treaties  of  Peace.^ 

^  See  Nowacki,  Die  Eisenbahnen  of  peace.  The  assertion  that  Article 
im  Krief/e  (1906),  §§  15,  19.  Some  53,  second  paragraph,  is  to  be  inter- 
writers — see,  for  instance,  Bonfils,  preted  in  that  sense,  is  unfounded, 
No.  1185,  and  Wehberg,  op.  cit.,  p.  22  for  restoration  is  there  stipulated  for 
— maintain  that  such  rolling  stock  such  means  of  transport  and  the  like 
may  not  be  appropriated,  but  may  as  are  private  property, 
only  be  made  use  of  during  war,  and  *  Thus  Article  245  of  the  Treaty 
must  be  restored  after  the  conclusion  of  Peace  with  Germany  provides  for 


APPROPRIATION  OF  PUBLIC  ENEMY  PROPERTY   201 

§  139.  The  case  of  moveable  enemy  property  found  Booty 
by  an  invading  belligerent  on  enemy  territory  is  different  Battie- 
from  that  of  moveable  enemy  property  on  the  battle-  ^*^^^- 
field.  According  to  a  former  rule  of  the  Law  of  Nations, 
all  enemy  property,  public  or  private,  which  a  belli- 
gerent could  get  hold  of  on  the  battlefield  was  booty, 
and  could  be  appropriated.  Although  some  modern 
publicists  ^  who  wrote  before  the  Hague  Conference  of 
1899  teach  the  validity  of  this  rule,  it  is  obvious  from 
Articles  4  and  14  of  the  Hague  Regulations  that  it  is 
now  obsolete  as  regards  jyrivate^  enemy  property, 
except  military  papers,  arms,  horses,  and  the  like.  But 
as  regards  public  enemy  property,  this  customary  rule 
is  still  vahd.  Thus  not  only  weapons,  mmiitions,  and 
valuable  pieces  of  equipment  which  are  found  upon  the 
dead,  wounded,  and  prisoners,  may  be  seized,  but  also 
the  war-chest  and  State  papers  in  possession  of  a  cap- 
tured commander,  enemy  horses,  batteries,  carts,  and 
all  other  pubhc  property  found  on  the  field  of  battle  that 
is  of  value.  To  whom  the  booty  ultimately  belongs  is 
not  for  International  but  for  Municipal  Law  ^  to  deter- 
mine, since  International  Law  simply  states  that  pubhc 
enemy  property  on  the  battlefield  can  be  appropriated 
by  belhgerents.  The  restriction  in  Article  53  of  the 
Hague  Regulations  that  only  such  moveable  property 
may  be  appropriated  as  can  be  used  for  the  operations 
of  war,  does  not  apply  to  property  found  on  the  battle- 
field, for  Article  53  speaks  of  '  an  army  of  occupation ' 
only.  Such  property  may  be  appropriated,  whether 
it  can  be  used  for  mihtary  operations  or  not ;  the  mere 
fact  that  it  was  seized  on  the  battlefield  entitles  a  beUi- 
gerent  to  appropriate  it. 

the    restoration     of     the     trophies,  p.  73,  and  Heffter,  §  135. 

archives,     historical     souvenirs,    or  *  See  above,  §  124,  and  below,  § 

works    of    art   carried     away   from  144. 

France  by  the  German  authorities.  ^  According    to   British    law,   all 

See  also  Articles  238,  244,  Annex.  booty  belongs   to   the   Crown.     See 

*  See,   for   instance,   Halleck,  ii.  Twiss,  ii.  §§  64,  71. 


202  WARFARE  ON  LAND 


VI 

APPROPRIATION   AND   UTILISATION   OF  PRIVATE 
ENEMY   PROPERTY 

Grotius,  iii.  c.  5— Vattel,  iii.  §§  73,  160-164— Hall,  §§  139,  141-144— West- 
lake,  ii.  pp.  103-104— Lawi-ence,  §§  172-175,  179— Maine,  pp.  192-206— 
Manning,  pp.  179-183— Twiss,  ii.  §§  62-71— Halleck,  ii.  pp.  73-75— 
Moore,  vii.  §§  1121,  1151,  1152,  1155— Taylor,  §§  529,  532,  537— 
Wharton,  iii.  §  338— Wheaton,  §  355— Bluntschli,  §§  652,  656-659— 
Heflfter,  §§  130-136— Lueder  in  Holtzendorff,  iv.  pp.  488-500— G.  F. 
Martens,  ii.  §§  279-280— Ullmann,  §  183— Bonfils,  Nos.  1194-1206— 
Despagnet,  Nos.  579-590— Pradier-Fod6r6,  vii.  Nos.  3032-3047— 
RiNner,  ii.  pp.  318-323— Nys,  iii.  pp.  252-266— Calvo,  iv.  §§  2220-2229— 
Fiore,  iii.  Nos.  1391,  1392,  1472,  and  Code,  Nos.  1535-1536,  1622- 
1623— Martens,  ii.  §  120— Longuet,  §§  97-98— M6rignhac,  iii'\  pp.  418- 
427— Fillet,  pp.  333-342— ^riefifabraucTi,  pp.  53-56— Zorn,  pp.  270-283— 
Meurer,  ii.  §  54— Spaight,  pp.  188-201— Garner,  ii.  §§  395-397,  399— 
Holland,  War,  Nos.  106-107— i/and  War/are,  §§  407-415— Bentwich, 
The  Law  of  Private  Property  in  War  (1907) — Borchard,  §  104 — See  also 
the  monographs  of  Rouard  de  Card,  Bluntschli,  Depambour,  Wehberg, 
and  Latifi,  quoted  above  at  the  commencement  of  §  133. 

immove-  §  140.  Immoveable  private  enemy  property  may 
Private  under  no  circumstances  or  conditions  be  appropriated 
Property,  by  ^n  invading  belligerent.  Should  he  confiscate  and 
sell  private  land  or  buildings,  the  buyer  would  acquire 
no  right  ^  whatever  to  the  property.  Article  46  of  the 
Hague  Eegulations  expressly  enacts  that  '  private 
property  may  not  be  confiscated.^  ^  But  confiscation 
differs  from  the  temporary  use  of  private  land  and 
buildings  for  all  kinds  of  purposes  demanded  by  the 
necessities  of  war.  What  has  been  said  above  ^  with 
regard  to  utihsation  of  pubhc  buildings  apphes  equally  * 
to  private  buildings.     If  necessary,  they  may  be  con- 

*  See  below,  §  283.  during  the  World  War. 

^  Although  the  Hague  Regulations  »  <;  i  qp 

cannot  literally  be  applied  in  occupied  ^ 

enemy  colonies  populated  by  natives  *  The  Hague  Regulations  do  not 

and  having  only  a  few  white  settlers,  mention  this;  they  simply  enact  in 

their  real  estate  must  not  be  sold,  Article  46  that  private  property  must 

as  was  done  in  German  East  Africa,  be  'respected,'  and  may  not  be  con- 

Togoland,  Samoa,  and  the Cameroons,  fiscated. 


APPROPRIATION    OF   PRIVATE   ENEMY   PROPERTY       203 

verted  into  hospitals,  barracks,  and  stables  without 
compensation  for  the  proprietors,  and  they  may  also 
be  converted  into  fortifications.  A  hmnane  belli- 
gerent will  not  drive  the  wretched  inhabitants  into  the 
street  if  he  can  help  it.  But  under  the  pressure  of 
necessity  he  may  be  obhged  to  do  this,  and  he  is  cer- 
tainly not  prohibited  from  doing  it. 

§  141.  All  kinds  of  private  moveable  property  which  private 
can  serve  as  war  material,  such  as  arms,  ammimition,  JJateriai 
cloth  for  uniforms,  leather  for  boots,  saddles,  and  also  and 
all  apphances  (whether  on  land  or  at  sea  or  in  the  air)  Trans- 
which  are  adapted  for  the  transmission  of  news  or  for^"'"*^" 
the  transport  of  persons  and  goods,  such  as  railway 
rolhng  stock, ^  ships,  telegraphs,  telephones,  carts,  and 
horses,  may  be  seized  and  made  use  of  for  mihtary 
purposes  by  an  invading  belhgerent ;    but  they  must 
be  restored  at  the  conclusion  of  peace,  and  compensa- 
tion must  be  paid  for  them.     This  is  expressly  enacted 
by  Article  53  of  the  Hague  Kegulations.     It  is  evident 
that  the  seizure  of  such  material  must  be  duly  acknow- 
ledged by  receipt,  although  Article  53  does  not  say  so  ; 
for  otherwise  how  could  compensation  be  paid  after 
the  conclusion  of  peace  ?     As  regards  the  question  who 
is  to  pay  the  compensation,  Holland  ^  correctly  main- 
tains that  *  the  Treaty  of  Peace  must  settle  upon  whom 
the  burden  of  making  compensation  is  ultimately  to 
faU.' 

§  142.  On  the  other  hand,  works  of  art  and  science,  Works  of 
and  historical  monuments,  may  not  under  any  circum-  gcfence, 
stances  or  conditions  be  appropriated  or  made  use  of  Historical 
for    mihtary    operations.     Article    56    of    the    Hague  ments. 
Regulations  enacts  categorically  that  '  all  seizure '  of 
such  works  and  mommients  is  prohibited.     Therefore, 

'  See  Nowacki,    Die  Eisenbahnen  other   countries,    as    to   which    see 
im  Kriege  (1906),  §  15.     Ditferent,  Garner,  ii.  §  397. 
of  course,  is  the  seizure  of  the  rail- 
way  tracks,    and   their   removal    to  *  War,  No.  113. 


204  WARFARE   ON  LAND 

although  the  metal  of  which  a  statue  is  cast  may  be 
of  the  greatest  value  for  cannons,  it  must  not  be  touched. 
Other  §  143.  Private    personal    property    which    does    not 

Personal  consist  of  War  material  or  means  of  transport  service- 
Property.  q^Iq  Jqj,  loihtary  operations  may  not  as  a  rule  be  seized.^ 
Articles  46  and  47  of  the  Hague  Regulations  expressly 
stipulate  that '  private  property  may  not  be  confiscated/  - 
and  *  pillage  is  formally  prohibited.'  But  it  must  be  j 
emphasised  that  these  rules  have,  in  a  sense,  exceptions  ^ 
demanded  and  justified  by  the  necessities  of  war. 
Men  and  horses  must  be  fed  ;  men  must  protect  them- 
selves against  the  weather.  If  there  is  no  time  for 
ordinary  requisitions  ^  to  provide  food,  forage,  clothing, 
and  fuel,  or  if  the  inhabitants  of  a  locahty  have  fled,  so 
that  ordinary  requisitions  caimot  be  made,  a  beUigerent 
must  take  these  articles  wherever  he  can  get  them,  and 
he  is  justified  ^  in  so  doing.  Moreover,  quartering  *  of 
soldiers  (who,  together  with  their  horses,  must  be  well 
fed  by  the  inhabitants  of  the  houses  where  they  are 
quartered)  is  likewise  lawful,  although  it  may  be  ruin- 
ous to  the  private  individuals  upon  whom  they  are 
quartered.* 
Moveable  §  143a.  Such  are  the  rules  regarding  moveable  private 
Property  pfopcrty  fouud  in  enemy  territory ;  but  they  were 
w^rid  systematically  violated  by  the  Central  Powers  during 
War.  the  World  War.  Live  stock,  particularly  cattle  and 
horses,  were  seized  in  Belgium  and  the  occupied  parts 
of  France  and  carried  off  to  Germany.^  Factories  and 
workshops  were  dismantled,  and  their  machinery  and 
materials  carried  away.®    Cash  was  taken  from  private 

^  See  above,  §   133  n.      Nor  may  *  The  Hague  Regulations  do  not 

the  occupant  liquidate  the  businesses  mention  this  case, 

of  enemy  subjects  in  occupied  terri-  *  See  below,  §  147. 

tory,  although  he  can  control  them,  *  See  Garner,  ii.  §  395,  who  quotes 

and   must   certainly   not   sell    their  Lord  R.   Cecil  as  stating  on  March 

real  estate  (see  above,  §  140),  even  19,    1918,    '  Belgium  had    1,500,000 

if   the   proceeds  are   to   be    handed  cattle  ;    we    know   that    practically 

over  to  them  after  the  war.  half  of  these  have  gone  to  Germany. ' 

*  See  below,  §  147.  ®  See  Garner,  ii.  §  396. 


APPROPRIATION   OF   PRIVATE   ENEMY   PROPERTY       205 

banks.^  These  are  but  examples  of  the  wholesale  seizure 
of  private  property  practised  by  Germany  and  her 
alhes  in  the  countries  which  they  occupied.^  How- 
ever, reparation  has  to  be  made  under  the  Armistices 
and  Treaties  of  Peace.  Thus  Germany  must  effect 
'  restitution  in  cash  of  cash  taken  away,  seized  or  seques- 
trated, and  also  restitution  of  animals,  objects  of  every 
nature,  and  securities  taken  away,  seized,  or  seques- 
trated, in  the  cases  in  which  it  proves  possible  to  identify 
them  in  territory  belonging  to  Germany  or  her  alhes,'^ 
and  pay  compensation  for  'damage  in  respect  of  all 
property  wherever  situated  belonging  to  any  of  the 
Alhed  or  Associated  States  or  their  nationals  (with  the 
exception  of  naval  and  mihtary  works  or  materials) 
which  has  been  carried  off,  seized,  injured,  or  destroyed 
by  the  acts  of  Germany  or  her  aUies.'  ^ 

§  144.  Private   enemy   property   on   the    battlefield  Booty 
is  no  longer  in  every  case  an  object  of  booty.^    Arms,  Battle 
horses,  and  mihtary  papers  may  indeed  be  appropriated,^  ^^^^ 
even  if  they  are  private  property,  as  may  also  private 
means  of  transport,  such  as  carts  and  other  vehicles 
which  an  enemy  has  made  use  of.     But  letters,  cash, 
jewellery,  and  other  articles  of  value  found  upon  the 
dead,    wounded,    and    prisoners    must,    according    to 
Article  14  of  the  Hague  Regulations  and  Article  4  of 
the  Geneva  Convention,  be  handed  over  to  the  Bureau 
of  Information  regarding  Prisoners  of  War,  which  must 

^  See    Gamer,    ii.    §   399.      Cash  *  Article  238. 

was  also  apparently   taken   by  the  4  Article  244,  Annex  1. 

Kussians  irom  private  banks  during  \ 

their   occupation   of   Lemberg  ;    see  ^®®  above,  §  139. 

Cybichowski   in   Z.I.,  xxvi.   (1916),  *  See  above,  g  139,  and  Article  4  of 

at  p.  470.  the  Hague  Regulations.     This  article 

*  See  also  below,  §  147.     See  also  only    mentions    arms,    horses,    and 

the     account     of    the    removal    by  military  papers ;   but   saddles,   stir- 

the  Russians  of  valuables,  pictures,  rups,  and  the  like  go  with   horses, 

and   other  property   from   Lemberg  as  ammunition  goes  with  arms,  and 

during   their    occupation   given    by  these   may  for  this  reason  likewise 

Cybichowski   in   Z.I.,  xxvi.   (1916),  be  appropriated  ;  see  Land  War/are, 

•t  pp.  445,  468.  §  69,  note  (e). 


206 


WARFARE   ON  LAND 


transmit  them  to  those  interested.  Through  Article  14 
of  the  Hague  Regulations  and  Article  4  of  the  Geneva 
Convention  ib  becomes  apparent  that  nowadays  private 
enemy  property  found  on  the  battlefield,  other  than 
mihtary  papers,  arms,  horses,  and  the  like,  is  no  longer 
booty,  although  individual  soldiers  often  take  as  much 
spoil  as  they  can  get.  It  is  impossible  for  the  commander 
to  bring  the  offender  to  justice  in  every  case.^ 
Private  §  145.  Such  is  the  position  of  private  property  found 
Pro^rty  by  a  belhgerent  on  enemy  territory  ;  different,  however, 
brought  jg  ^Yi_e  case  of  enemy  private  property  brought  into  the 
Belli-  ^  territory  of  a  belhgerent  during  war.  Since  such  pro- 
Te^Story.  pcrty  fouud  there  at  the  outbreak  of  war  may  not  be 
confiscated,^  and  private  property  found  on  enemy 
territory  is  nowadays  Hkewise,  as  a  rule,  exempt  from 
confiscation,  there  can  be  no  doubt  that  private  enemy 
property  brought  into  a  belligerent's  territory  during 
time  of  war  may  not,  as  a  rule,  be  confiscated.^  On 
the  other  hand,  a  belhgerent  may  prohibit  the  with- 
drawal of  articles  of  property  which  can  be  used  by 
the  enemy  for  military  purposes,  such  as  arms,  ammuni- 
tion, provisions,  and  the  like.  And  by  analogy  with 
Article  53  of  the  Hague  Regulations,  there  can  be 
no  doubt  that  a  belhgerent  may  seize  such  articles 
and  use  them  for  military  purposes,  provided  that  he 
restores  them  at  the  conclusion  of  peace  and  pays 
compensation  for  them. 


^  During  the  Russo-Japanese  War, 
Japan  carried  out  to  the  letter  the 
stipulation  of  Article  14  of  the 
Hague  Regulations.  Through  the 
intermediary  of  the  French  Embassies 
in  Tokio  and  St.  Petersburg,  all  valu- 
ables found  on  the  Russian  dead  and 
seized  by  the  Japanese  were  handed 
over  to  the  Russian  Government. 


2  See  above,  §  102. 

'  The  case  of  enemy  merchant- 
men seized  in  a  belligerent's  terri- 
torial waters  is,  of  course,  an  excep- 
tion, as  is  also  the  case  of  enemy 
goods  found  by  a  belligerent  on  one 
of  his  own  merchantmen  and  seized 
in  one  of  his  ports.  See  above, 
§  102,  and  below,  §§  177  n.,  197  n. 


REQUISITIONS   AND   CONTRIBUTIONS  207 


VII 

REQUISITIONS   AND   CONTRIBUTIONS 

Vattel,  iii.  §  165— Hall,  §  140-140*— Lawrence,  §  180— Westlake,  ii.  pp.  106- 
113— Maine,  p.  200— Twiss,  ii.  §  64— Halleck,  ii.  pp.  68-70— Taylor,  §§ 
538-539— Moore,  vii.  §  1146— Bluntschli,  §§  653-655— Heffter,  §  131— 
Lueder  in  Holtzendorff,  iv.  pp.  500-510 — Ullmann,  §  183 — Bonfils,  Nos. 
1207-1226— Despagnet,  Nos.  587-590— Pradier-Fod^rd,  vii.  Nos.  3048- 
3064— Rivier,  ii.  pp.  324-327— Nys,  iii.  pp.  328-392— Calvo,  iv.  §§2231- 
2284— Fiore,  iii.  Nos.  1394,  1473-1476,  and  Code,  Nos.  1565,  1614-1620 
—Martens,  ii.  §  120— Longuet,  §§  110-114— M^rignhac,  iii".  pp.  427-459 
-Fillet,  pp.  215-235— Zorn,  pp.  2%Z-^\5—Kriegshraxich,  pp.  61-63— 
Holland,  War,  Nos.  111-112— Bordwell,  pp.  314-324— Meurer,  ii.  §§56- 
64— Spaight,  pp.  381-408— Ariga,  §§  116-122— Garner,  ii.  §§387-394,  and 
in  A.J.,  xi.  (1917),  pp.  14:112- Land  Warfare,  §§  416-425— Thomas, 
Des  Requisitions  milit aires  (1884) — Keller,  Requisition  und  Kontribution 
(1898) — Pont,  Les  Requisitions  mililairea  du  Temps  de  Guerre  (1905) — 
Albrecht,  Requisitionen  von  neutralem  Privateigentum,  etc.  (1912),  pp. 
1-24 — Gregorj',  Contributions  and  Requisitions  in  War  (1915) — Borchard, 
§  105 — Ferrand,  Des  Requisitions  en  matiere  de  Droit  international  public 
(1917) — Risley  in  the  Journal  of  the  Society  of  Comparative  Legislation, 
New  Ser.  ii.  (1900),  pp.  214-223. 

§  146.  Requisitions  and  contributions  in  war  are  war  must 
the  outcome  of  the  eternal  principle  that  war  must  ^^^^^^^ 
support  war.i  This  means  that  every  belhgerent  may 
make  his  enemy  pay,  as  far  as  possible,  for  the  con- 
tinuation of  the  war.  But  this  principle,  though  it  is 
as  old  as  war,  and  will  only  die  with  war  itself,  has  not 
the  same  effect  in  modern  times  on  the  actions  of  beUi- 
gerents  as  it  formerly  had.  For  thousands  of  years, 
belligerents  used  to  appropriate  aU  private  and  public 
enemy  property  they  could  obtain,  and,  when  modern 
International  Law  grew  up,  this  practice  found  legal 
sanction.  But  after  the  end  of  the  ^venteenth  century, 
this  practice  grew  milder,  under  the  influence  of  the 
experience  that  the  provisioning  of  armies  in  enemy 
territory  became  more  or  less  impossible  when  the  in- 
habitants were  treated  according  to  the  old  principle. 

^  Concerning   the   controversy  as       and  contributions,  see  Albrecht,  op. 
to   the   justification   of   requisitions       cit.,  pp.  18-21. 


208  WARFARE   ON  LAND 

Although  belligerents  retained,  in  strict  law,  the  right 
to  appropriate  all  private  as  well  as  all  pubhc  property, 
it  became  usual  to  abstain  from  enforcing  this  right, 
and  in  heu  thereof  to  impose  contributions  of  cash 
and  requisitions  in  kind  upon  the  inhabitants  of  the 
invaded  country.^  When  this  usage  developed,  no 
belligerent  ever  thought  of  paying  in  cash  for  requisi- 
tions, or  giving  a  receipt  for  them.  But  in  the  nine- 
teenth century  another  practice  became  usual ;  and 
commanders  often  gave  a  receipt  for  contributions 
and  requisitions,  in  order  to  avoid  abuse,  and  to  prevent 
further  demands  for  fresh  contributions  and  requisi- 
tions by  succeeding  commanders  without  knowledge 
of  the  former  impositions.  And  there  are  cases  during 
the  nineteenth  century  on  record  in  which  belHgerents 
actually  paid  in  cash  for  all  requisitions  they  made. 
The  usual  practice  at  the  end  of  the  nineteenth  century 
was  that  commanders  always  gave  a  receipt  for  con- 
tributions, and  that  they  either  paid  in  cash  for  requi- 
sitions, or  acknowledged  them  by  receipt,  so  that  the 
inhabitants  could  be  indemnified  by  their  own  Govern- 
ment after  conclusion  of  peace.  However,  no  restric- 
tion whatever  was  imposed  upon  commanders  with 
regard  to  the  amount  of  contributions  and  requisi- 
tions, or  with  regard  to  the  proportion  between  the 
resources  of  a  country  and  the  burden  imposed. 

The  Hague  Regulations  made  a  progressive  settle- 
ment of  the  question  by  enacting  rules  which  put  it 
wholly  on  a  new  basis.  That  war  must  support  war 
remains  a  principle  under  these  regulations  also.  But 
they  were  widely  influenced  by  the  demand  that  the 
enemy  State  as  such,  and  not  the  private  enemy  indi- 
viduals, should  be  made  to  support  the  war,  and  that 

*  An  excellent  sketch  of  the  hiatori-       given    by    Keller,    Requisition    und 
cal  development  of  the  practice  of       Kontrihution  (1898),  pp.  5-26. 
requisitions    and    contributions    is 


REQUISITIONS   AND   CONTRIBUTIONS  209 

only  so  far  as  the  necessities  of  war  demanded  it,  should 
contributions  and  requisitions  be  imposed.  Although, 
therefore,  certain  pubHc  moveable  property  and  the 
produce  of  pubhc  immoveables  may  be  appropriated 
as  heretofore,^  requisitions  must  be  paid  for  in  cash  or, 
if  this  is  impossible,  acknowledged  by  receipt. 

§  147.  Kequisition  is  the  name  for  the  demand  for  Requisi- 
the  supply  of  all  kinds  of  articles  necessary  for  an  Kind.^and 
army,  such  as  provisions  for  men  and  horses,  clothing,  Quartor- 
or  means  of  transport.  Kequisition  of  certain  services 
may  also  be  made,  but  they  will  be  treated  ^  together 
with  occupation,  requisitions  in  kind  only  being  within 
the  scope  of  this  section.  Now,  what  articles  may  be 
demanded  by  an  army  cannot  once  for  all  be  laid  down, 
as  they  depend  upon  its  actual  needs.  According  to 
Article  52  of  the  Hague  Kegulations,  requisitions  may 
be  made  from  municipahties  as  well  as  from  in- 
habitants, but  so  far  only  as  they  are  really  necessary 
for  the  army.^  They  may  not  be  made  by  individual 
soldiers  or  officers,  but  only  by  the  commander  in  the 
locahty.  All  requisitions  must  be  paid  for  in  cash, 
and  if  this  is  impossible,  they  must  be  acknowledged 
by  receipt,*  and  the  payment  of  the  amount  must  be 
made  as  soon  as  possible.  The  principle  that  requi- 
sitions must  be  paid    for  by  the  enemy  is  thereby 

*  See  above,  §§  134,  137.  the  spring  of  1918  it  appears  to  have 

*  See  below,  §  170.  degenerated  into  a  system  of  indis- 
'  Article  52  was  entirely  ignored       criminate  pillage  .  .  .  the  same  policy 

by  the  Germans  while  they  occupied  ...  is  alleged  to  have  been  carried 

Belgium  and  part  of  France  during  out  in   Serbia,    Roumania,   Poland, 

the    World    War,    for    they    made  Northern  Italy,  and  other  territories 

requisitions,  not  only  for  the  needs  occupied  by  the  armies  of  the  Central 

of  the  army  of  occupation,  but  for  Powers.' 

the   needs   of  Germany  in   general.  *  See  Garner,  ii.  §  393,  who  quotes 

See  details  in  Ferrand,  op.  cit.,  pp.  a  report  from  Belgian  sources  that 

434-444,  and  Garner,  ii.  §§  393,  who  at  Antwerp,  prior  to  March   1915, 

concludes  that  'as  the  blockade  of  85,000,000  francs'  worth  of  supplies 

Germany  became  more  effective,  and  were  requisitioned  by  the  Germans, 

her    own    domestic    stocks    of    raw  that  at  the  date  of  the  report  less 

materials  were  reduced,  the  policy  of  than  half  that  amount  had  been  paid, 

requisition  in  the  occupied  territories  and  in  most  cases  no  receipts  had 

was  pushed  to  the  extreme  limit.    By  been  given. 

VOL.    II.  O 


210  WARFARE   ON  LAND 

absolutely  recognised,  but,  of  course,  commanders-in- 
chief  may  levy  contributions  ^  in  case  they  do  not 
possess  cash  for  payment  of  requisitions.  However 
this  may  be,  from  the  rule  that  requisitions  must  always 
be  paid  for,  it  again  becomes  apparent,  and  beyond 
all  doubt,  that  private  enemy  propei'ty  is,  as  a  rule, 
exempt  from  appropriation  by  an  invading  army. 

A  special  kind  of  requisition  is  the  quartering  ^  of 
soldiers  in  the  houses  of  private  inhabitants  of  enemy 
territory  who  .are  required  to  supply  lodging  and  food 
for  them,  and  sometimes  also  stabling  and  forage  for 
horses.  Although  the  Hague  Eegulations  do  not 
specially  mention  quartering,  Article  52  is  neverthe- 
less to  be  applied  to  it,  since  quartering  is  nothing  else 
than  a  special  kind  of  requisition.  If  cash  cannot  be 
paid  at  once  for  quartering,  every  inhabitant  concerned 
must  get  a  receipt  for  it,  stating  the  number  of  soldiers 
quartered,  and  the  number  of  days  they  were  catered 
for,  and  the  payment  of  the  amount  must  be  made  as 
soon  as  possible. 

However,  neither  in  the  case  of  ordinary  requisi- 
tions, nor  in  the  case  of  quartering  of  troops,  is  a  com- 
mander compelled  to  pay  the  prices  asked  by  the  in- 
habitants. On  the  contrary,  he  may  fix  the  prices 
himself,  although  it  is  expected  that  they  shall  be 
fair. 
Contribu-  §  l'^^.  Contribution  is  a  payment  in  ready  money 
tions.  demanded  either  from  municipahties  or  from  inhabitants, 
whether  enemy  subjects  or  foreign  residents.  Whereas 
formerly  no  general  rules  concerning  contributions 
existed.  Articles  49  and  51  of  the  Hague  Regulations 
enacted  that  contributions  might  not  be  demanded 
extortionately,  but  exclusively  ^  for  the  needs  of  the 

^  See  below,  §  148.  penalty,  see  Article  50  of  the  Hague 

*  See  above,  §  143.  Regulations.    See  also  Keller,  op.  ct<., 

'  As  regards  contributiona   as   a       pp.  60-62. 


REQUISITIONS    AND    CONTRIBUTIONS  211 

army,  in  order,  for  instance,  to  pay  for  requisitions,  or 
for  the  administration  of  the  locahty  in  question.  They 
might  be  imposed  by  a  written  order  of  a  commander- 
in-chief  only,  in  contradistinction  to  requisitions, 
which  might  be  imposed  by  a  mere  commander  in  a 
locahty.  They  might  not  be  imposed  indiscriminately 
on  the  inhabitants,  but  must  so  far  as  possible  be 
assessed  upon  them  in  comphance  with  the  rules  laid 
down  by  their  own  Government  regarding  the  assess- 
ment of  taxes.  And,  finally,  for  every  individual 
contribution  a  receipt  had  to  be  given.  It  is  apparent 
that  these  rules  of  the  Hague  Regulations  sought  to 
exclude  all  arbitrariness  and  despotism  on  the  part  of 
an  invading  enemy  with  regard  to  contributions,  and 
to  secure  to  the  individual  contributors,  as  well  as  to 
contributing  municipahties,  the  possibihty  of  being 
indemnified  afterwards  by  their  own  Government,  thus 
shifting,  so  far  as  possible,  the  burden  of  supporting 
the  war  from  private  individuals  and  municipahties  to 
the  State  proper.^ 

But  the  Hague  Regulations  relating  to  contributions, 
as  well  as  those  relating  to  requisitions,  were  violated 
by  the  Central  Powers  in  the  territories  which  they 
occupied  during  the  World  War.  In  Belgium  and 
Northern  France,  for  example,  the  contributions  which 
they  levied  were  undoubtedly  excessive,  for  they 
were  required  neither  for  the  needs  of  the  army 
of  occupation  nor  for  the  administration  of  the 
country.^ 

^^  It  is   strange    to    observe   that  389.    By  the  Treaty  of  Peace  (Article 

Kriegsbrauch,    pp.    61-63,    does   not  244,  Annex  1),  Germany  is  liable  to 

mention  the   Hague  Regulations  at  pay  compensation  for  damage  '  in  the 

*!!•  form  of  levies  .   .   .   upon  the  civilian 

■  See  details  in  Garner,  ii.  §§  388-  population.' 


212  WARFARE   ON  LAND 


VIII 

DESTRUCTION   OF   ENEMY   PROPERTY 

Grotius,  iii.  c.  5,  §§  1-3;  c.  12— Vattel,  iii.  §§  166-168— Hall,  §  186— 
Lawrence,  ?  906 — Manning,  p.  186 — Twiss,  ii.  §§  65-69 — Halleck,  ii.  pp. 
63,  64,  71,  74— Taylor,  §§  481-482— Wharton,  iii.  ?  349— Moore,  vii.  § 
1113_Wheaton,  §§  347-351- Bluntschli,  §§  649,  651,  662,  663— Heffter, 
§  125— Lueder  in  Holtzendorff,  iv.  pp.  482-487— Kliiber,  §  262— G.  F, 
Martens,  ii.  §  280— Ullmann,  §  176— Bonfils,  Nos.  1078,  1178-1180— 
Pradier-Fod6r6,  Ti.  Nos.  2770-2774— Rivier,  ii.  pp.  265-268— Nj's,  iii. 
pp.  160-164— Calvo,  iv.  §§  2215-2222— Fiore,  iii.  Nos.  1383-1388,  and 
Code,  Nos.  1530-1534,  1610-1611— Martens,  ii.  §  110— Longuet,  §§  99, 
100— Garner,  i.  §§  '2QQ-2\'A—Krieg8hrauch,  pp.  53-56— Holland,  War, 
Nos.  3  and  76(9-)- Bordwell,  p.  284— Spaight,  pp.  111-140— Land  War- 
fare, §§  414,  422,  426,  427,  434. 

Wanton        §  149.  lu  former  times  invading  armies  frequently 
Destruc-    ^g^j  ^q  ^^e  and  destroy  all  enemy  property  they  could 
hibited.     not  make  use  of  or  carry  away.    Afterwards,  when 
the  practice  of  warfare  grew  milder,   belligerents  in 
strict  law  retained  the  right  to  destroy  enemy  pro- 
perty according  to  discretion,  although  they  did  not, 
as  a  rule,  any  longer  make  use  of  such  right.    Nowa- 
days, however,  this  right  is  obsolete.    For  in  the  nine- 
teenth century  it  became  a  universally  recognised  rule 
of    International    Law    that    all    useless    and    wanton 
destruction  of  enemy  property,  be  it  pubhc  or  private, 
was  absolutely  prohibited  ;   and  this  rule  was  expressly 
enacted  by  Ai'ticle  23(^)  of  the  Hague  Eegulations : 
'  to  destroy  .  .  .  enemy's  property,  unless  such  destruc- 
tion ...  be  imperatively  demanded  by  the  necessities 
of  war,  is  prohibited.' 
Destruc-       §  150.  All  dcstructiou   of,   and   damage   to,   enemy 
the"^""     property  for  the  purpose  of  offence  and  defence  is 
Purpose  of  necBssary  destruction  and  damage,  and  therefore  lawful, 
and°°^     whether  it  be  on  the  battlefield  during  battle,  or  in 
Defence,    pj-gparatiou  f or  battle  or  siege.     To  strengthen  a  defen- 
sive position,  a  house  may  be  destroyed  or  damaged. 


DESTRUCTION  OF  ENEMY  PROPERTY      213 

To  cover  the  retreat  of  an  army,  a  village  on  the  battle- 
field may  be  fired.  The  district  aromid  a  fortress  held 
by  an  enemy  may  be  razed,  and,  therefore,  all  private 
and  pubhc  buildings,  all  vegetation  may  be  destroyed, 
and  all  bridges  blown  up  within  a  certain  area.  If  a 
farm,  a  village,  or  even  a  town  is  not  to  be  abandoned, 
but  prepared  for  defence,  it  may  be  necessary  to  damage 
in  many  ways,  or  entirely  destroy,  private  and  pubhc 
property.  Fm'ther,  if  and  where  a  bombardment  is 
lawful,  all  destruction  of  property  involved  in  it  becomes 
hkewise  la\vf ul.  When  a  belhgerent  force  obtains  posses- 
sion of  an  enemy  factory  which  makes  ammunition  or 
supphes  provisions  for  the  enemy  troops,  if  it  is  not 
certain  that  it  can  hold  it  against  an  attack,  it  may 
at  least  destroy  the  plant,  if  not  the  buildings.  Or 
if  a  force  occupies  an  enemy  fortress,  it  may  raze  the 
fortifications.  Even  a  force  entrenching  itself  on  a 
battlefield  may  be  obhged  to  resort  to  the  destruction 
of  many  kinds  of  property. 

Be  that  as  it  may,  in  every  case  destruction  must  be 
'  imperatively  demanded  by  the  necessities  of  war,'  and 
must  not  merely  be  the  outcome  of  a  spirit  of  plunder 
or  revenge  such  as,  during  the  World  W^ar,  prompted 
the  dreadful  and  utter  devastation  ^  of  houses,  orchards, 
vineyards,  tiees  in  the  area  from  which  the  German 
armies  in  France  withdrew  in  the  spring  of  1917,  and 
of  the  coal-mines,  factories,  and  dwelhn^s  in  Cambrai 
and  elsewhere  which  marked  the  German  fine  of 
retreat  in  the  autumn  of  the  following  year.^ 

S  151.  Destruction  of  enemy  property  in  marching  Destmc- 
troops,   conducting  mihtary  transport,   and.  m  recon-  Marching, 
noitring,    is   lawful   if    unavoidable.     A    reconnoitrmg  ^^7^"^^^ 
party  need  not  keep  on  the  road  if  they  can  better  serve  ^^d^c<m- 

Trans- 
^  See  Garner,  i.  §  206,  who  quotes       a  gigantic  ribbon,  an  empire  of  death.'  port, 
a  German  newspaper  as  saying  :   'in  ^  See  Garner,  i.  §  211.     See  also 

froot  of  our  new  positions  runs,  like       below,  §  154. 


214  WARFARE   ON  LAND 

their  purpose  by  riding  across  the  tilled  fields.    And 
troops  may  be  marched,  and  transport  may  be  con- 
ducted, over  crops  when  necessary.    A  humane  com- 
mander will  not  unnecessarily  allow  his  troops  and 
transport   to   march   and   ride   over   tilled   fields   and 
crops.     But  if  the  purpose  of   war  necessitates  it,  he 
is  justified  in  so  doing. 
Destruc-       §  152.  Whatever  enemy  property  a  belHgerent  may 
ArraJ       appropriate    he    may    hkewise    destroy.     To    prevent 
Ammuni-  ^}^g  euemv  from  making  use  of  them  a  retreating  force 

tion,  and  •'  <-'  .    .  o 

Pro-         may  destroy  arms,  ammunition,  provisions,  and  the 
visions,     jij^^^  which  they  have  taken  from  the  enemy,  or  requi- 
sitioned and  cannot  carry  away.     But  they  may  not 
destroy  provisions  in  the  possession  of  private  enemy 
inhabitants  in  order  to  prevent  the  enemy  from  making 
use  of  them  in  the  future.^       Nor  is  a  commander 
allowed  to  requisition  such  provisions  in  order  to  have 
them  destroyed,  for  Article  52  of  the  Hague  Regula- 
tions expressly  enacts  that  requisitions  are  only  admis- 
sible for  the  necessities  of  the  army. 
Destruc-       §  153.  All  dcstructiou  of,  and  damage  to,  historical 
HiSioricai  mouumeuts,   works  of  art  and  science,   buildings  for 
mentis"      charitablc,    educational,    and   rehgious  ^   purposes   are      ; 
Works  of  specially  prohibited  by  Article  56  of  the  Hague  Regula- 
theiike.    tious,  which  cuacts  that  the  perpetrators  of  such  acts 
must  be  prosecuted  (poursuivis),  i.e.  court-martialled. 
But  these  objects  enjoy  this  protection  only  during 
mihtary    occupation    of    enemy    territory.     Should    a 
battle  be  waged  around  an  historical  monument  on 
open  ground,  should  a  church,  a  school,  or  a  museum  be 
defended  and  attacked  during  mihtary  operations,  these 

^  Spaight,  p.   138,  objects  to  this  tombstones,  churches,  and  the  like 

statement.     His  arguments  are  not  is    not    prohibited    by   the   Law   of 

conclusive,  because  they  concern  the  Nations,   although  he  strongly  (iii. 

case  of  justified  general  devastation.  c.    12,    §§    5-7)    advises    that    tliey 

should  be  spared,  unless  their  pre- 

*  According  to  Grotius  (iii.  c,  5,  servationis  dangerous  to  the  interests 

§§  2  and  3),  destruction  of  graves,  of  the  invader, 


DESTRUCTION   OF  ENEMY   PROPERTY  215 

otherwise  protected  objects  maybe  damaged  or  destroyed 
under  the  same  conditions  as  other  enemy  property.^ 

§  154.  The  question  must  also  be  considered  whether,  General 
and  under  what  conditions,  general  devastation  of  ation?^^* 
locality,  be  it  a  town  or  a  larger  part  of  enemy  terri- 
tory, is  permitted.  There  cannot  be  the  shghtest  doubt 
that  such  devastation  is,  as  a  rule,  absolutely  prohibited, 
and  only  in  exceptional  cases  permitted  when,  to  use 
the  words  of  Article  23{g)  of  the  Hague  Regulations, 
it  is  '  imperatively  demanded  by  the  necessities  of 
war.'  It  is  impossible  to  define  once  for  all  the  circum- 
stances which  make  a  general  devastation  necessary, 
since  everything  depends  upon  the  merits  of  the  special 
case.  But  the  fact  that  a  general  devastation  can 
be  lawful  must  be  admitted.  It  is,  for  instance,  lawful 
in  case  of  a  levy  en  masse  on  already  occupied  territory, 
when  self-preservation  obHges  a  beUigerent  to  resort  to 
the  most  severe  measures.  It  is  also  lawful  when,  after 
the  defeat  of  his  main  forces  and  occupation  of  his  terri- 
tory, an  enemy  disperses  his  remaining  forces  into  small 
bands  which  carry  on  guerilla  tactics  and  receive  food  and 
information,  so  that  there  is  no  hope  of  ending  the  war 
except  by  a  general  devastation  which  cuts  ofi  suppHes  of 
every  kind  from  the  guerilla  bands.  But  it  must  be  speci- 
ally observed  that  general  devastation  is  only  justified 
by  imperative  necessity,  and  by  the  fact  that  there  is 
no  better  and  less  severe  way  open  to  a  belligerent.^ 

There  was,  for  example,  no  imperative  necessity  to 
justify  the  general  devastation  by  the  German  armies 
of  the  Somme  area  of  France  in  the  spring  of  1917, 
during  the  World  War,  or  of  the  country  through  which 
they  were  rolled  back  in  the  following  autumn.^ 

*  See  further  below,  §  158.  of  the  nineteenth  century.     See  also 

*  See   Hall.    §   186,  who  gives  in       Spaight,  pp.  125-139. 

nuce  a  good  survey  of  the  doctrine  *  See  Fauchille,  L'£vacuation  des 

and  practice  of  general  devastation        Territoires  occupes  par  V AUemagne 
from  Grotius  down  to  the  beginning        danf  le  Nord  de  la  France  (1917); 


216 


WARFARE   ON  LAND 


Be  that  as  it  may,  whenever  a  belligerent  resorts 
to  general  devastation,  he  ought,  if  possible,  to  make 
some  provision  for  the  unfortunate  peaceful  popula- 
tion of  the  devastated  tract  of  territory.  It  would  be 
more  humane  to  take  them  away  into  captivity  rather 
than  let  them  perish  on  the  spot.  The  practice,  re- 
sorted to  during  the  South  African  War,  of  housing  the 
victims  of  devastation  in  concentration  camps,  must 
be  approved.  The  purpose  of  war  may  even  obhge 
a  belligerent  to  confine  a  population  forcibly  ^  in  con- 
centration camps. 

IX 

ASSAULT,   SIEGE,   AND  BOMBARDMENT 

Vattel,  iii.  §§  169-170— Hall,  §  186— Lawrence,  §  204— Westlake,  ii.  pp.  87- 
89— Moore,  vii.  §  1112— Halleok,  ii.  pp.  59  n.  67,  185— Hershey,  No. 
382— Taylor,  §§  483-485— Bluntschli,  §§  552-5546— HefiFter,  §  125— 
Lueder  in  Holtzendorff,  iv.  pp.  448-457— G.  F.  Martens,  ii.  §§  286-287— 
Ullmann,  §  181— Bonfils,  Nos.  1079-1087— Despagnet,  Nos.  528-535— 
Pradier-Fod6r6,  vi.  Nos.  2779-2786— Rivier,  ii.  pp.  284-288— Nys,  iii. 
pp.  148-160— Calvo,  iv.  §§  2067-2095— Fiore,  iii.  Noa.  1322-1330,  and 
Code,  Nos.  1524-1529— Longuet,  §§  58-59— M^rignhac,  iii".  pp.  270-284 
—Fillet,  pp.  101-112— Zorn,  pp.  161-174— Holland,  War,  Nos.  80-83— 
Bordwell,  pp.  286-288  —  Meurer,  §§  32-34  — Spaight,  pp.  157-201— 
Garner,  i.  §§  2Q9-272—Kriegabrauch,  pp.  18-22— Land  War/are,  §§  117- 
138— Rolin-Jaequemyns  in  E.I.,  ii.  (1870),  pp.  659,  674,  iii.  (1871), 
pp.  297-307— Faiichille  in  E.G.,  xxiv.  (1917),  pp.  56-74. 

Assault,        §  155.  Assault  is  the  rush  of  an  armed  force  upon 
Bombard-  cucmy  forccs  in  the  battlefield,  or  upon  entrenchments, 
when        fortifications,    habitations,    villages,    or    towns,    such 
lawful,      rushing  force  committing  every  violence  against  oppos- 
ing persons,   and  destroying   all  impediments.     Siege 
is  the  surrounding  and  investing  of  an  enemy  locality 
by  an  armed  force,  cutting  off  those  inside  from  all 

and  in  R.O.,  xxiv.  (1917),  pp.  317-  War,  and  the  concentration  camps 
336,  and  Gamer,  i.  §§  206-213.  See  instituted  in  consequence,  see  Beak, 
also  above,  §  150.  The  Aftermath  of  War  (1906),  pp. 

1-30  ;   The  Times  History  of  the  War 
^  See  above,  §  116  n.     As  regards       in   South    Africa,    v.    pp.    252-254; 
devastation  during  the  South  African       Spaight,  pp.  306-310. 


ASSAULT,    SIEGE,    AND   BOMBARDMENT  217 

communication,  for  the  purpose  of  starving  them  into 
surrender,  or  for  the  purpose  of  attacking  the  invested 
locahty  and  taking  it  by  assault.  Bombardment  is 
the  throwing  by  artillery  of  shot  and  shell  upon  persons 
and  things.  Siege  can  be  accompanied  by  bombard- 
ment and  assault,  but  this  is  not  necessary,  since  a 
siege  can  be  carried  out  by  mere  investment  and 
starvation  caused  thereby.  Assault,  siege,  and  bom- 
bardment are  severally  and  jointly  perfectly  legitimate 
means  of  warfare.^  Neither  bombardment  nor  assault 
on  the  battlefield  need  special  discussion,  as  they  are 
allowed  under  the  same  circumstances  and  conditions 
as  force  in  general.  The  only  question  here  is  under 
what  circumstances  assault  and  bombardment  are 
allowed  outside  the  battlefield.  The  answ^er  is  indirectly 
given  by  Article  25  of  the  Hague  Kegulations,  where 
it  is  categorically  enacted  that  '  the  attack  or  bom- 
bardment, by  any  means  whatever,  of  towns,  villages, 
habitations,  or  buildings,  which  are  not  defended,  is 
prohibited. '  ^  This  provision  involved  a  decided  advance 
in  the  view  taken  by  International  Law,  for  it  was 
formerly  asserted  by  many  writers  ^  and  mihtary 
experts  that,  for  certain  reasons  and  purposes,  unde- 
fended locaHties  also  might,  in  exceptional  cases,  be 
bombarded ;  and  it  is  doubtful  how  far  the  practice 
of  the  World  War  came  up  to  the  new  standard.*  It 
matters  not,  however,  whether  the  defended  locahty 
be  fortified  or  not,  since  an  unfortified  place  can  be 


*  The  assertion  of  some  writers —  defended  locality,  and  because  it 
see,  for  instance,  Pillet,  pp.  104-107,  would  involve  unjustifiable  \'iolence 
and  M^rignhac,  iii".  p.  273 — that  against  enemj'  persons,  and  would, 
bombardment  is  lawful  only  after  an  therefore,  be  unlawful, 
unsuccessful  attempt  by  the  besiegers  3  gee,  for  instance,  Lueder  in 
to  starve  the  besieged  into  surrender  Holtztndorff,  iv.  p.  451. 

is  not  based  upon  a  recognised  rule 

of  the  Law  of  Nations.  *  For  details  of  the  many  charges 

*  Siege  is  not  there  specially  men-  of  bombarding  undefended  places 
tioned,  both  because  no  belligerent  which  the  belligerents  made  against 
would  dream   of    besieging  an   un-  each  other,  see  Garner,  i.  §§  269-270. 


218  WARFARE   ON  LAND 

defended ;  but  under  what  circiunstances  a  place  is 
to  be  regarded  as  defended  is  not  always  free  from 
doubt.^  Nothing  prevents  a  belhgerent  who  has  taken 
possession  of  an  undefended  fortified  place  from 
destroying  the  fortifications  by  bombardment  as  well 
as  by  other  means. 

The  words  *  by  any  means  whatever '  were  added 
by  the  Second  Hague  Conference  so  as  to  cover  bom- 
bardment by  aircraft.  Nevertheless,  it  is  maintained 
by  some  that,  by  analogy  with  bombardment  by 
naval  forces,^  railway  junctions,  munition  factories, 
and  the  like  may  be  bombarded  from  the  air  though 
situated  in  undefended  places.  The  question  of  law 
is  controversial.^  All  belhgerents  resorted  to  such 
bombardments  dming  the  World  AVar. 
Assault,  §  156.  Undefended  towns,  villages,  habitations  or 
carried  buildiugs  may  not  be  assaulted ;  *  but  when  assault 
°^^'  is  lawful,  no  special  rules  of  International  Law  exist 
with  regard  to  the  mode  of  carrying  it  out.  Therefore, 
only  the  general  rules  respecting  offence  and  defence 
apply.  It  is  in  particular  not  ^  necessary  to  give  notice 
of  an  impending  assault  to  the  authorities  of  the  locahty, 
or  to  request  them  to  surrender  before  an  assault  is 
made.  That  an  assault  may,  or  may  not,  be  pre- 
ceded, or  accompanied,  by  a  bombardment,  need 
hardly  be  mentioned,  nor  that,  by  Article  28  of  the 
Hague  Regulations,  pillage  of  towns  taken  by  assault 
is  expressly  prohibited. 
Siege,  §  157.  With  regard  to  the  mode  of  carrying  out  siege 

cabled     without  bombardment  no  special  rules  of  International 
°^*-         Law  exist,  and  here  too  only  the  general  rules  respect- 

^  See  Holls,  The  Peace  Conference  *  See  below,  §214a-c.     The  author 
at  </ie /Ta^ue  (1900),  p.  152.    Accord-  had  marked  this  question  for  con- 
ing to  Land  Warfare,  §  119,  a  local-  sideration. 
ity  '  may  be  deemed  to  be  defended,  4  ggg  above   §  155. 
if  a  military  force  is  in  occupation  ' 
of,  or  marching  through,  it.'  '  This  may  be  inferred  from  Ar- 

*  See  below,  §  213,  tide  26  of  the  Hague  Regulations. 


ASSAULT,    SIEGE,    AND   BOMBARDMENT  219 

ing  offence  and  defence  apply.  Therefore,  an  armed 
force  besieging  a  town  may,  for  instance,  cut  off  the 
river  which  supphes  drinking  water  to  the  besieged, 
but  must  not  poison  ^  the  river.  Moreover,  no  rule 
of  law  exists  which  obliges  a  besieging  force  to  allow 
all  non-combatants,  or  even  women,  children,  the 
aged,  the  sick  and  wounded,  or  subjects  of  neutral 
Powers,  to  leave  the  besieged  locality  unmolested. 
Although  such  permission  ^  is  sometimes  granted,  it 
is  in  most  cases  refused,  because  the  fact  that  non- 
combatants  are  besieged  together  with  the  combatants, 
and  have  to  endure  the  same  hardships,  may,  and  very 
often  does,  exercise  pressure  upon  the  authorities  to 
surrender.  Further,  should  the  commander  of  a 
besieged  place  expel  the  non-combatants,  in  order  to 
lessen  the  number  of  those  who  consume  his  store  of 
provisions,  the  besieging  force  need  not  allow  them 
to  pass  through  its  hues,  but  may  drive  them  back.^ 

That  diplomatic  envoys  of  neutral  Powers  may  not 
be  prevented  from  leaving  a  besieged  town  is  a  con- 
sequence of  their  exterritoriahty.  However,  if  they 
voluntarily  remain,  may  they  claim  uncontrolled  *  com- 
munication with  their  home  State  by  correspondence 
and  couriers  ?  When  Mr.  Washburne,  the  American 
diplomatic  envoy  at  Paris  during  the  siege  of  that 
city  in  1870  by  the  Germans,  claimed  the  right  of 
sending  a  messenger  with  despatches  to  London  in 
a  sealed  bag  through  the  German  lines,  Bismarck 
declared  that  he  was  ready  to  allow  foreign  diplomats 
in  Paris  to  send  a  courier  to  their  home  States  once 
a  week,  but  only  if  their  despatches  were  open  and  did 
not  contain  any  remarks  concerning  the  war.     Although 

*  See  above,  §  110.  fortresses. 

-  Thus  in  1870,  during  the  Franco-  3  gee  Land  Warfare,  §  129. 
Irerman  War,  the  German  besiegers 

of   Strasburg  as  well  as  of  Belfort  *  The  matter  is  discussed  by  Rolin- 

allowed   the    women,    the   children,  Jaequemyns  in  /?./.,  iii.  (1871),  pp. 

and  the  sick  to  leave  the  besieged  371-377, 


220  WARFARE   ON  LAND 

the  United  States  and  other  Powers  protested,  Bismarck 
did  not  alter  his  decision.  The  whole  question  must 
be  treated  as  open.^ 
Bombard-  §  158.  Bombardment  by  land  forces  was  not  generally 
™rried°^  considered  prior  to  the  World  War  except  in  con- 
°^^-  nection  with  assault  or  siege.  But  the  experiences  of 
that  war,  and  in  particular  the  new  uses  of  aircraft  and 
long-range  guns,  have  raised  the  question  ^  how  far 
bombardment  is  lawful  when  it  is  solely  for  destructive 
purposes,  and  is  not  intended  to  be  a  prelude  to  occupa- 
tion by  armed  forces.  If,  as  is  generally  held,  bom- 
bardment by  aircraft  within  the  theatre  of  opera- 
tions is  lawful,  even  though  there  is  no  intention  to 
occupy  the  bombarded  area,  similar  bombardment  by 
long-range  guns  would  appear  to  be  legitimate.^  How- 
ever this  may  be.  Article  26  of  the  Hague  Regulations 
enacts  that  the  commander  of  the  attacking  forces, 
except  in  the  case  of  an  assault,  shall  do  all  he  can  to 
notify  his  intention  to  resort  to  bombardment.  But 
it  must  be  emphasised  that  a  strict  duty  of  notification 
in  all  cases  of  bombardment  is  not  thereby  imposed, 
for  a  commander  only  has  to  do  all  he  can  to  send  notifi- 
cation. He  camiot  do  it  when  the  circumstances 
of  the  case  prevent  him,  or  when  the  necessities  of 
war  demand  an  immediate  bombardment.  The  pur- 
pose of  notification  is  to  enable  private  individuals 
within  the  locahty  to  be  bombarded  to  seek  shelter 
for  their  persons  and  for  their  valuable  personal 
property. 

Article  27  of  the  Hague  Regulations  enacts  the 
former  customary  rule  that  all  necessary  steps  must 
be  taken  to  spare,  as  far  as  possible,  all  buildings 
devoted    to   religion,   art,   science,   and    charity,    and 

^  See   above,    vol.   i.    §  399,   and  ^  This  expression   of  opinion  has 

Wharton,  i.  §  97.  been  put  together  from  a  rough  note 

^  See    Fauohille    in    R.O.,    xxiv.  by  the  author,  and  he  evidently  in- 

(1917),  pp.  56-76.  tended  to  reconsider  it, 


ASSAULT,    SIEGE,    AND   BOMBARDMENT  221 

historic  monuments,^  hospitals,  and  all  other  places 
where  the  sick  and  wounded  are  collected,  provided 
these  buildings,  places,  and  monuments  are  not  used 
at  the  same  time  for  military  purposes.  To  enable 
the  attacking  forces  to  spare  them,  they  must  be 
indicated  by  some  signs,  which  must  be  previously 
notified  to  the  attacking  forces,  and  must  be  visible 
from  the  far  distance  from  which  the  besieging  artillery 
carries  out  the  bombardment. 

No  bombardment  takes  place  without  the  sufferers 
accusing  the  attacking  forces  of  neglecting  the  rule  that 
such  places  must  be  spared.  The  fact  is  that  their 
destruction  cannot  always  be  avoided,  although  the 
artillery  of  the  attacking  forces  may  not  intentionally 
aim  at  them.  That  the  forces  of  civilised  States  in- 
tentionally destroy  such  buildings,  I  cannot  beUeve. 

In  practice,  whenever  one  belligerent  accuses  another 
of  having  intentionally  bombarded  a  hospital,  church, 
or  similar  building,  the  charge  is  always  either  denied 
with  indignation  or  justified  by  the  assertion  that  these 
sacred  buildings  have  been  used  improperly  by  the 
accuser.  Thus  when  France  in  1870  complained  that 
the  Germans,  during  the  siege  of  Paris,  had  dehberately 
bombarded  the  hospitals,  the  Germans  asserted  that  it 
was  an  accident.  Further,  in  1870,  during  the  siege  of 
Strasburg,  when  the  Germans  bombarded  the  cathedral, 
they  justified  their  action  by  asserting  that  the  French 
had  estabhshed  an  observation  post  thereon.  Again,  in 
the  World  War,  when  the  Germans  shelled  and  destroyed 
the  cathedral  of  Rheims  and  other  sacrosanct  edifices, 
they  again  pleaded  in  justification  that  observation 
posts  had  been  estabhshed  thereon.^ 

However  this  may  be,  no  legal  duty  exists  for  the 

^  See  Zitelraann  in  Z.  F.,  x.  (1917),  ment  of  places  enumerated  in  Article 
pp.  1-19.  27    during    the    World     War,    see 

*  For  details  regarding  bombard-       Garner,  i.  §§  285-289. 


222  WARFARE  ON  LAND 

attacking  forces  to  restrict  bombardment  to  fortifi 
cations  only.  On  the  contrary,  destruction  of  private 
and  public  buildings  through  bombardment  has  always 
been,  and  is  still,  considered  lawful,  as  it  is  one  of 
the  means  of  impressing  upon  the  authorities  the  ad- 
visa  bihty  of  surrender.  Some  writers^  assert  either 
that  bombardment  of  a  town,  in  contradistinction  to  its 
fortifications,  is  never  lawful,  or,  at  any  rate,  only  when 
bombardment  of  the  fortifications  has  not  induced 
surrender.  But  this  opinion  does  not  represent  the 
actual  practice  of  belhgerents,  and  the  Hague  Regula- 
tions did  not  adopt  it. 

X 

ESPIONAGE   AND  WAR  TREASON 

Grotius,  iii.  c.  4,  §  18,  No.  3— Vattel,  iii.  §§  179-182— Hall,  §  188— Westlake, 
ii.  pp.  89-91 — Lawrence,  §  199 — Phillimore,  iii.  §  96 — Halleck,  i.  pp. 
571-575,  and  in  A.J.,  v.  (1911),  pp.  590-603— Taylor,  §§  490,  492— 
Wharton,  iii.  §  347— Moore,  \ii.  §  1132— Hershey,  No.  383— Bluntschli, 
§§  563-564,  628-640— Heffter,  §  125— Lueder  in  Holtzendorff,  iv.  pp. 
461-467— UUmann,  §  176— Bontils,  Nos.  1100-1104— Despagnet,  Nos. 
536-542— Pradier-Fod^re,  vi.  Nos.  2762-2768— Rivier,  ii.  pp.  282-284— 
Nys,  iii.  pp.  209-218— Calvo,  iv.  §§  2111-2122— Fiore,  iii.  Nos.  1341, 
1374-1376,  and  Code,  Nos.  1492-1497— Martens,  ii.  §  116— Longuet,  §§ 
63-75— M^rignhac,  iii".  pp.  285-299— Pillet,  pp.  97-100— Zom,  pp.  174- 
195— Holland,  War,  Nos.  84-87— Bordwell,  pp.  291-292— Meurer,  §§ 
35-38— Spaight,  pp.  202-215,  333-335— Ariga,  §§  98-100— Takahashi, 
pp.  185-194 — Kriegshrauch,  pp.  30-31 — Land  Warfare,  §§  155-173 — 
Friedemann,  Die  Bechtalage  der  Kriegskundacha/ter  und  Kriegatpione 
(1892) — Detourbet,  U Eipionnage et  la  Trahiaon  (\?>^%) — Violle,  L'Espion- 
nage  militaire  en  Temps  de  Guerre  (1904) — Adler,  Die  Spionage  (1906) — 
Routier,  U Eapionnage  et  la  Trahiacni  en  Tempa  de  Paix  et  en  Temps  de 
Guerre  (1915) — Bentwich  in  the  Journal  of  the  Society  of  Comparative 
Legislation,  New  Ser.  x.  (1910),  pp.  243-249 — M'Kinney  in  the  lUinoit 
Law  Review,  [xii.  (1918),  pp.  591-628. 

Twofold  §  159.  War  cannot  be  waged  without  all  kinds  of 
Qf^gg^^^.  information  about  the  forces  and  the  intentions  of 
age  and     f]r^Q  enemy,  and  about  the  character  of  the  country 

Treason.  ^  See,  for  instance,  Pillet,  pp.  104-  does  not  deny  the  right  to  bombard 
107 ;  Bluntschli,  §  554a  ;  M^rignhac,  the  town,  although  he  does  not  re- 
iii".  pp.  280-284.     Vattel  (iii.  §  169)       commend  it. 


ESPIONAGE   AND   WAR  TREASON  223 

within  the  zone  of  miHtary  operations.  To  obtain  the 
necessary  information,  it  has  always  been  considered 
lawful  to  employ  spies,  and  also  to  make  use  of  the 
treason  of  enemy  soldiers  or  private  enemy  subjects, 
whether  they  were  bribed,^  or  offered  the  information 
voluntarily  and  gratuitously.  Ai'ticle  24  of  the  Hague 
Regulations  enacted  the  old  customary  rule  that  the 
employment  of  methods  necessary  to  obtain  informa- 
tion about  the  enemy  and  the  comitry  is  considered 
allowable.  The  fact,  however,  that  these  methods  are 
lawful  on  the  part  of  the  belligerent  who  employs 
them  does  not  prevent  the  punishment  of  such  indi- 
viduals as  are  engaged  in  procuring  information. 
Although  a  belhgerent  acts  lawfully  in  employing  spies 
and  traitors,  the  other  belhgerent,  who  punishes  them, 
likewise  acts  lawfully.  Indeed,  espionage  and  war 
treason  bear  a  twofold  character.  For  persons  commit- 
ting acts  of  espionage  or  war  treason  are — as  will  be 
shown  below  ^ — considered  war  criminals  and  may  be 
punished,  but  the  employment  of  spies  and  traitors  is 
considered  lawful  on  the  part  of  the  belhgerents. 

§  160.  Espionage   must   not   be  confounded,  firstly,  Espionage 
with    scouting,    or    secondly,    with    despatch-bearing.  JJ|gti*nc-^*' 
According  to  Article  29   of  the  Hague   Regulations,  ^^^  to 
espionage  is  the  act  of  a  soldier  or  other  individual  who  and 
clandestinely,  or  under  false  pretences,  seeks  to  obtain  beTnng'!^ 
information  concerning  one  belhgerent  in  the  zone  of 
belhgerent  operations  with  the  intention  of  communi- 
cating it  to  the  other  belhgerent.^    Therefore,  soldiers 
not  in  disguise,  who  penetrate  into  the  zone  of  opera- 
tions of  the  enemy,  are  not  spies.     They  are  scouts 
who   enjoy  all   the  privileges   of  members  of  armed 

^  Some  writers  maintain,  however,  or  knowingly  concealing  a  spy  are, 

that  it  is  not  lawful  to  bribe  enemy  according    to   a   customary    rule    of 

soldiers  into  espionage  ;    see  below,  International  Law,  acts  punishable 

§  162.  as  though  they  were  themselves  acts 

•    "  §  255.  of    espionage ;    see   Land    War/are, 

*  Assisting  or  favouring  espionage,  §  172. 


224  WARFARE   ON  LAND 

forces,  and  they  must,  if  captured,  be  treated  as 
prisoners  of  war.  Likewise,  soldiers  or  civilians 
charged  with  the  deHvery  of  despatches  for  their  own 
army  or  for  that  of  the  enemy,  and  carrying  out  their 
mission  openly,  are  not  spies.  And  it  matters  not 
whether  despatch-bearers  make  use  of  balloons,  air- 
craft, or  other  means  of  commmiication.  Thus,  a 
soldier  or  civihan  tr}dng  to  carry  despatches  from  a 
force  besieged  in  a  fortress  to  other  forces  of  the  same 
belhgerent,  whether  making  use  of  a  balloon,  or  an 
air-vessel,  or  riding  or  walking  at  night,  may  not  be 
treated  as  a  spy.  On  the  other  hand,  spying  can  well 
be  carried  out  by  despatch-bearers,  or  by  persons  in 
a  balloon  or  an  air-vessel.^  The  mere  fact  that  a 
balloon  or  air-vessel  is  visible  does  not  protect  the 
persons  using  it  from  being  treated  as  spies ;  since 
spying  can  be  carried  out  under  false  pretences  quite 
as  well  as  clandestinely.  But  special  care  must  be 
taken  really  to  prove  the  fact  of  espionage  in  such 
cases,  for  an  individual  carrying  despatches  is  'prima 
facie  not  a  spy,  and  must  not  be  treated  as  a  spy  until 
proved  to  be  such. 

A  remarkable  case  of  espionage  is  that  of  Major 
Andre,"^  which  occurred  in  1780  during  the  American 
War  of  Independence.  The  American  General  Arnold, 
who  was  commandant  of  West  Point,  on  the  North 
Eiver,  intended  to  desert  the  Americans  and  join  the 
British  forces.  He  opened  negotiations  with  Sir  Henry 
Chnton  for  the  purpose  of  surrendering  W^est  Point, 
and  Major  Andre  was  commissioned  by  Sir  Henry 
Clinton  to  make  the  final  arrangements  with  Arnold. 
On  the  night  of  September  21,  Arnold  and  Andre  met 
outside  the  American  and  British  lines,  but  Andre, 
after  having  changed  his  uniform  for  plain  clothes, 

1  See  below,  §  356  (4),  concerning  ^  See  Halleck  in  A.J.,  v.  (1911), 

wireless  telegraphy.  p.  594. 


ESPIONAGE   AND  WAR  TREASON  225 

undertook  to  pass  the  American  lines  on  his  return, 
furnished  with  a  passport  under  the  name  of  John 
Anderson  by  General  Arnold.  He  was  caught,  con- 
victed as  a  spy,  and  hanged.  As  he  was  not  seeking 
information,^  and  therefore  was  not  a  spy  according 
to  Article  29  of  the  Hague  Regulations,  a  conviction 
for  espionage  would  not,  if  such  a  case  occurred  to-day, 
be  justified.  But  it  would  be  possible  to  convict  for 
war  treason,  for  Andre  was  no  doubt  negotiating  treason. 
Be  that  as  it  may,  George  iii.  considered  Andre  a 
martyr,  and  honoured  his  memory  by  granting  a 
pension  to  his  mother  and  a  baronetcy  to  his 
brother.^ 

§  161.  The  usual  punishment  for  spying  is  hanging  Punish- 
or  shooting ;  though  less  severe  punishments  are,  of  ^spk)"- 
course,  admissible,  and  are  sometimes  inflicted.  How-  age. 
ever,  according  to  Article  30  of  the  Hague  Regula- 
tions a  spy  may  not  be  punished  without  trial  before  a 
court-martial ;  and  according  to  Article  31,  a  spy 
who  is  not  captm'ed  in  the  act,  but  rejoins  the  army 
to  which  he  belongs,  if  subsequently  captured  by  the 
enemy,  may  not  be  punished  for  his  previous  espionage, 
but  must  be  treated  as  a  prisoner  of  war.  But  Article 
31  apphes  only  to  spies  who  belong  to  the  armed  forces 
of  the  enemy  ;  civilians  who  act  as  spies,  and  are  cap- 
tured later,  may  be  punished.  No  regard  is  paid  to 
the  status,  rank,  position,  or  motive  of  a  spy.  He 
may  be  a  soldier  or  a  civilian,  an  officer  or  a  private. 
He  may  be  following  instructions  of  superiors,  or 
acting  on  his  own  initiative  from  patriotic  motives. 
A  case  of  espionage,  remarkable  on  account  of  the 
position  of  the  spy,  is  that  of  the  American  Captain 
Nathan  Hale,  which  occurred  in  1776.  After  the 
American   forces   had   withdrawn   from   Long   Island, 

^  Halleck,  loc.  cit.,  p.  598,  asserts  *  See     Phillimore,     iii.     §     106; 

the  contrary.  Halleck,  i.  p.  573  ;  Rivier,  ii.  p.  284. 

VOL.   II.  P 


Treason. 


226  WARFARE   ON  LAND 

Captain  Hale  recrossed  under  disguise,  and  obtained 
valuable  information  about  the  English  forces  that  had 
occupied  the  island.      But  he  was  caught  before  he 
could  rejoin  his  army,  and  he  was  executed  as  a  spy,^ 
War  §  162.  War  treason  is  a  comprehensive  term  for  a 

number  of  acts  hostile  to  the  belHgerent  within  whose 
hues  they  are  conmaitted^;  it  must  be  distinguished 
from  real  treason,  which  can  only  be  committed  by 
persons  owing  allegiance,  albeit  temporary,  to  the  injured 
State.  War  treason  can  be  committed  by  a  soldier  or 
an  ordinary  subject  of  a  belHgerent,  but  it  can  also  be 
conunitted  by  an  inhabitant  of  occupied  enemy  terri- 
tory, or  even  by  a  subject  of  a  neutral  State  temporarily 
staying  there,  and  it  can  take  place  after  an  arrange- 
ment with  the  favoured  belHgerent  or  without  such 
an  arrangement.  In  any  case,  a  belHgerent  making  f 
use  of  war  treason  acts  lawfully,  although  the  Hague 
Regulations  do  not  mention  the  matter  at  all. 

This  is  generally  recognised  ;  but  it  is  controversial  ^ 
whether  a  belHgerent  acts  lawfuUy  who  bribes  a  com- 
mander of  an  enemy  fortress  into  surrender,  incites 
enemy  soldiers  to  desertion,  bribes  enemy  officers  for 
the  purpose  of  getting  important  information,  incites 
enemy  subjects  to  rise  against  the  legitimate  Govern- 
ment, and  the  Hke.  If  the  rules  of  the  Law  of  Nations 
are  formulated,  not  from  doctrines  of  book-writers,  but 
from  what  is  done  by  belHgerents  in  practice,*  it  must 
be  asserted  that  such  acts,  detestable  and  immoral  as 
they  are,  are  not  considered  illegal  according  to  the 
existing  rules  of  the  Law  of  Nations. 

^  The  case  of  Major  Jakoga  and  §110(8);  Longuet,  §52;  M^rignhac, 

Captain  Oki,  which,  though  reported  iii".  p.  289.     See  also  below,  §  164. 

as  a  case  of  espionage,  is  really  a  *  See  Land    Warfare,  §  158  ;   and 

case  of  war  treason,  will  be  discussed  Spaight,    pp.    140-150,    who    distin- 

below  in  §  255.  guishes  between  incitement  of  enemy 

^  The  subject  is   more  fully  dis-  troops  to  treason  and  incitement  of 

cussed  below  in  §  255.  the  enemy  population  to  revolt ;  the 

*  See  Vattel,  iii.  §  ISO ;   Heffter,  former    he   permits,   the    latter   he 

§  125  ;  Taylor,  §  490 ;   Martens,  ii.  considers  inadmissible. 


RUSES  227 

XI 

RUSES 

Grotius,  iii.  c.  1,  §§  6-18 — Bynkershoek,  Qttaestionea  Juris  puhlici,  i.  c.  1 — 
Vattel,  iii.  §§  177-178— Hall,  §  187— Lawrence,  §  207— Westlake,  ii.  pp. 
79-81— Phillimore,  iii.  §  94— Halleck,  i.  pp.  566-571— Taylor,  §  488— 
Moore,  vii.  §  1115— Bluntschli,  §§  565-566- Heffter,  §  125— Lueder  in 
Holtztndwff,  iv.  pp.  457-461— Ullmann,  §  176— Bonfik,  Nos.  1073-1076— 
Despagnet,  Nos.  526-527— Pradier-Foddr6,  vi.  Nos.  2759-2761— Rivier, 
ii.  p.  261— Nys,  iii.  pp.  204-209— Calvo,  iv.  §§  2106-2110— Fiore,  iii.  Nos. 
1334-1339— Longuet,  §§  53-56— M6rignhac,  iii".  pp.  263-266— Pillet,  pp. 
QZ-^l—Kriegshrauch,  pp.  23-24— Holland,  War,  Nos.  78-79— Bord well, 
pp.  283,  286— Meuier,  ii.  pp.  151-152— Spaight,  pp.  152-156— Land 
Warfare,  %%  139-154— Brocher  in  R.I.,  v.  (1873),  pp.  326-329. 

§  163.  Ruses  of  war,  or  stratagems,  are  deceit  em-  character 
ployed  in  the  interest  of  military  operations  for  the  °f  ^H^ 
purpose  of  misleading  the  enemy.  Such  deceit  is  of 
great  importance  in  war,  and,  just  as  belligerents  are 
allowed  to  employ  all  methods  of  obtaining  informa- 
tion, so  are  they — and  Article  24  of  the  Hague  Eegu- 
lations  confirms  this — allowed  to  employ  all  sorts  of 
ruses  for  the  purpose  of  deceiving  the  enemy.  Very 
important  objects  can  be  attained  through  ruses  of 
war,  such  as,  for  instance,  the  surrender  of  a  force, 
or  of  a  fortress,  the  evacuation  of  territory  held  by  the 
enemy,  the  withdrawal  from  a  siege,  the  abandon- 
ment of  an  intended  attack,  and  the  hke.  But  ruses 
of  war  are  also  employed,  and  are  very  often  the  decisive 
factor,  during  battles. 

§  164.  Of  ruses  there  are  so  many  kinds  that  it  is  Different 
impossible   to    enumerate  ^    and    classify   them.     But  strata-" 
some  instances  may  be  given.     It  is  hardly  necessary  s^™^- 
to   mention   the  laying  of   ambushes   and   traps,   the 
masking  of  mihtary  operations  (such  as  marches  or  the 
erection  of  batteries  and   the  hke),   the  feigning  of 

^  See  Laiid  Warfare,  §  144,  where  a  great  number  of  legitimate  rosea  are 
enumerated. 


228  WARFARE   ON  LAND 

attacks  or  flights  or  withdrawals,  the  carrying  out  of  a 
surprise,  and  other  stratagems  employed  every  day  in 
war.  But  it  is  important  to  know  that,  when  useful, 
feigned  signals  and  bugle-calls  may  be  ordered,  the 
watchword  of  the  enemy  may  be  used,  deceitful  intelU- 
gence  may  be  disseminated,^  the  signals  and  the  bugle- 
calls  of  the  enemy  may  be  mimicked  ^  to  mislead  his 
forces.  Even  such  detestable  acts  ^  as  bribery  of 
enemy  commandeie  and  ofiicials  in  high  position, 
and  secret  seduction  of  enemy  soldiers  to  desertion, 
and  of  enemy  subjects  to  insurrection,  are  frequently 
committed,  although  many  writers  protest.  As  regards 
the  use  of  the  national  flag,  the  mihtary  ensigns,  and 
the  uniforms  of  the  enemy,  theory  and  practice  are 
unanimous  in  prohibiting  such  use  during  actual 
attack  and  defence,  since  the  principle  is  considered 
inviolable  that  during  actual  fighting  belHgerent  forces 
ought  to  be  certain  who  is  friend  and  who  is  foe.  But 
many  *  pubhcists  maintain  that,  until  the  actual  fight- 
ing begins,  belHgerent  forces  may,  by  way  of  stratagem, 
make  use  of  these  things.  Article  23(/)  of  the  Hague 
Regulations  does  not  prohibit  their  use  without  quah- 
fication,  but  only  their  improper  use,  thus  leaving  the 
question  open,^  what  uses  are  proper  and  what  are 
not.  Those  who  have  hitherto  taught  the  admissi- 
biHty  of  the  use  of  these  symbols  outside  actual  fight- 
ing can  correctly  maintain  that  this  article  does  not 
prohibit  it.^ 

^  See    the    examples    quoted    by  attack,  was  before  the  World  War 

Pradier-rod6r6,  vi.  No.  2761.  becoming  larger ;    see,  for  instance, 

*  See  Pradier-Fod6r6,  vi.  No.  2760.  Lueder  in  HoUzendorff,  iv.  p.  458  ; 

^  The    point    has   been   discussed  M6rignhac,    iii".    p.    264 ;    Pi'adier- 

above  in  §  162.  Fod6r6,  vi.  No.  2760  ;   Bonfils,  No. 


*  See,  for  instance.  Hall,  §  187 
Bluntschli,  §  565;  Taylor,  §  488 
Calvo,  iv.  No.  2106 ;   Fillet,  p.  95 


1074;  Krieg»hrauch,-p.24:;  Spaight, 
pp.  104-110.  As  regards  the  use  of 
the  enemy  flag  by  men-of-war,  see 


Longuet,  §  54.     But  the  number  of  below,  §  211. 

publicists  who  consider  it  illegal  to  '  See  Land  Warfare,  §  152. 

make  use  of  the  enemy  flag,  ensigns,  *  When  members  of  armed  forces 

and  uniforms,  even  before  an  actual  wear  the  uniforms  of  prisoners  or  of 


RUSES  229 

§  165.  Stratagems  must  be  carefully  distinguished  strata- 
from  perfidy,  since  the  former  are  allowed,  whereas  foXadis- 
the  latter  is  prohibited.  Halleck  ^  correctly  formulates  p^^fijf"  ^° 
the  distinction,  by  laying  down  the  principle  that, 
whenever  a  belligerent  has  expressly  or  tacitly  engaged, 
and  is  therefore  bound  by  a  moral  obhgation,  to  speak 
the  truth  to  an  enemy,  it  is  perfidy  to  betray  his  con- 
fidence, because  it  constitutes  a  breach  of  good  faith. ^ 
Thus  a  flag  of  truce,  or  the  cross  of  the  Geneva  Con- 
vention, must  never  be  used  for  a  stratagem  ;  capitula- 
tions must  be  carried  out  to  the  letter ;  the  feigning 
of  surrender  to  lure  the  enemy  into  a  trap,  the  assassina- 
tion of  enemy  commanders,  soldiers  or  heads  of  States, 
are  treacherous  acts.  On  the  other  hand,  stratagem 
may  be  met  by  stratagem,  and  a  belligerent  cannot 
complain  of  the  enemy  who  so  deceives  him.  If,  for 
instance,  a  spy  of  the  enemy  is  bribed  to  give  deceitful 
intelhgence  to  his  employer,  or  if  an  officer,  who  is 
approached  by  the  enemy  and  offered  a  bribe,  accepts 
it  feigningly  but  deceives  the  briber  and  leads  him  to 
disaster,  no  perfidy  is  committed. 

the  enemy  dead,  not  for  deceit  but  members    of    armed    forces.       (See 

through  shortage   of    clothing — and  Article  1  of  the  Hague  Regulations. ) 

thej'  always  will  if  necessary — such  During  the  Russo-Japanese  War  each 

distinct  alterations  in  the  uniform  belligerent    repeatedly   accused    the 

ought  to  be  made  as  will  make  it  other  of  using  Chinese  clothing  for 

apparent  to  which  side  the  soldiers  members  of  their  armed  forces ;  their 

concerned  belong  (see  Land  Warfare,  soldiers     apparently    were    obliged 

§   154).      Moreover,   if  soldiers  are,  through    lack     of    proper    clothing 

through  lack  of  clothing,  obliged  to  temporarily  to  use  Chinese  garments, 

wear  civilian  greatcoats,  hats,  and  See,   however,   Takahashi,  pp.   174- 

the  like,  care  must  be  taken  that  they  178. 

weara  fixed  distinctive  emblem  which  ^  i.  p.  566. 

marks  them  as  soldiers,  since  other-  *  See  Land   Warfare,  §§  139-142, 

wise    they    lose    the    privileges    of  146-150. 


230  WARFARE   ON   LAND 

XII 

OCCUPATION   OF  ENEMY  TERRITORY 

Grotius,  iii.  c.  6,  §  4— Vattel,  iii.  §§  197-200— Hall,  §§  153-161— Westlake, 
ii.  pp.  93-116— Lawrence,  §§  176-179— Maine,  pp.  176-183— Halleck,  ii. 
pp.  432-466— Taylor,  §§  568-579— Hershey,  Nos.  387-400— Wharton, 
iii.  §§  354-355— Moore,  vii.  §§  1143-1155— Bluntschli,  §§  539-551— 
Heffter,  §§  131-132— Lueder  in  Hollzendorff,  iv.  pp.  510-524— Kliiber, 
§§  255-256— G.  F.  Martens,  ii.  §  280— Ullmann,  §§  183-184— Bonfils, 
Nos.  1156-1175— Despagnet,  No3.  567-578 — Pradier-Fod6r6,  ^'ii.  Nob. 
2939-2988,  3019-3028- Nys,  iii.  pp.  222-251  and  463-472— Rivier,  ii. 
pp.  299-306— Calvo,  iv.  §§  2166-2198— Fiore,  iii.  Nos.  1454-1481,  and 
Code,  Nos.  1540-1568— Martens,  ii.  §§  117-120— Longuet,  §§  115-133— 
M^rigahac,  iii".  pp.  387-415— Fillet,  pp.  237-259— Zorn,  pp.  213-243— 
Garner,  ii.  §§  365-430 — Kriegslyrauch,  pp.  45-50 — Holland,  War,  Nos. 
102-106— Bordweil,  pp.  312-330— Meurer,  ii,  §§  45-55— Spaight,  pp. 
320-380— i/and  Warfare,  §§  340-404— Waxel,  UArmAe  d' Invasion  et  la 
Population  (1874) — Litta,  U Occupazioiie  militare  (1881) — Liining,  Die 
Verwaltung  des  Oeneral-Oouvernementa  im  Elsass  (1874),  and  in  R.I., 
iv.  (1872),  p.  622,  v.  (1873),  p.  69 — Bernier,  De  I'Occupation  militaire 
en  Temps  de  Guerre  (1884) — Corsi,  VOccupazione  militare  in  Tempo  di 
Ouerra  e  le  Relazioni  intemazionali  che  ne  derivano  (2nd  ed.  1886) — 
Bray,  De  I'Occupation  militaire  en  Temps  de  Guerre,  etc.  (1891) — 
Magoon,  Law  of  Civil  Gover7iment  under  Military  Occupation  (2nd 
ed.  1900) — Lorriot,  De  la  Nature  de  I'Occupation  de  Guerre  (1903) — 
Deherpe,  Emai  sur  le  D4veloppement  de  I'Occupation  en  Droit  inter- 
national (1903) — Sichel,  Die  kriegerische  Besetzung  feindlichen  Staatsge- 
bietes  (1905) — Nowacki,  Die  Eisenbahnen  im  Kriege  (1906),  pp.  78-90 — 
Conner,  The  Development  of  Belligerent  Occupation  (1912) — Meurer, 
Die  volkerrechtliche  Stellung  dtr  vom,  Feind  hesetzten  Gebiete  (1915) — 
Ferrand,  Des  Requisitions  en  mati^re  de  Droit  international  public 
(1917) — Nys,  L'Occtipation  de  Guerre  (1919) — Rolin-Jaequemyns  in  R.I., 
ii.  (1870),  p.  666,  and  iii.  (1871),  p.  311— Stier-Somlo  in  Z.V.,  viii. 
(1914),  pp.  581-608— Cybichowski  in  Z.I.,  xxvi.  (1916),  pp.  427-478— 
Oppenheim  in  the  Law  Quarterly  Review,  xxxiii.  (1917),  pp.  266-286 
and  363-370— Visscher,  ibid.,  xxxiv.  (1918),  pp.  72-81— Bentwich  in 
the  British  Year-book  of  International  Law,  i.  (1920-1921),  pp.  139-148. 

Occupa-  §  166.  If  a  belligerent  succeeds  in  occupying  the 
Aim  of  ^"  whole,  or  even  a  part,  of  enemy  territory,  he  has  reahsed 
Warfare.  ^  very  important  aim  of  warfare.  He  can  now  not 
only  use  the  resources  of  the  enemy  country  for  mihtary 
purposes,  but  can  also  keep  it  for  the  time  being  as  a 
pledge  of  his  mihtary  success,  and  thereby  impress 
upon  the  enemy  the  necessity  of  submitting  to  terms 
of  peace.     In  regard  to  occupation,  International  Law 


OCCUPATION  OF  ENEMY  TERRITORY       231 

respecting  warfare  has  progressed  more  than  in  any 
other  department.  In  former  times,  enemy  territory 
occupied  by  a  belligerent  was  in  every  point  considered 
his  State  property,  so  that  he  could  do  what  he  liked 
with  it  and  its  inhabitants.  He  could  devastate  the 
country  with  fire  and  sword,  appropriate  all  pubhc 
and  private  property  therein,  and  kill  the  inhabitants, 
or  take  them  away  into  captivity,  or  make  them  take 
an  oath  of  allegiance.  He  could,  even  before  the  war 
was  decided,  and  his  occupation  was  definitive,  dispose 
of  the  territory  by  ceding  it  to  a  third  State ;  an  in- 
stance of  this  happened  during  the  Northern  War 
(1700-1718),  when  in  1715  Denmark  sold  the  occupied 
Swedish  territories  of  Bremen  and  Verden  to  Hanover. 
That  an  occupant  could  force  the  iiiliabitants  of  the 
occupied  territory  to  serve  in  his  own  army,  and  to 
fight  against  their  legitimate  sovereign,  was  indubitable. 
Thus,  during  the  Seven  Years'  War,  Frederick  ii.  of 
Prussia  repeatedly  made  forcible  levies  of  thousands 
of  recruits  in  Saxony,  which  he  had  occupied. 

But  during  the  second  half  of -the  eighteenth  century, 
things  gradually  began  to  undergo  a  change.  That 
the  distinction  between  mere  temporary  mihtary  occu- 
pation of  territory,  and  real  acquisition  of  territory 
through  conquest  and  subjugation,  became  more  and 
more  apparent,  is  shown  by  the  fact  that  Vattel  ^  drew 
attention  to  it.  However,  it  was  not  till  long  after 
the  Napoleonic  wars  that,  during  the  nineteenth  century, 
the  consequences  of  this  distinction  were  carried  to 
their  full  extent  by  the  theory  and  practice  of  Inter- 
national Law.  So  late  as  1808,  after  the  Russian  troops 
had  mihtarily  occupied  Finland,  which  was  at  that 
time  a  part  of  Sweden,  Alexander  i.  of  Russia  made 
the  inhabitants  take  an  oath  of  allegiance,^  although  it 
was  only  by  Article  4  of  the  Peace  Treaty  of  Frederiks- 

^  iii.  §  197.  "  See  Martens,  JV.R.,  i.  p.  9. 


232  WARFARE   ON  LAND 

hamm  ^  of  September  17,  1809,  that  Sweden  ceded  Fin- 
land to  Russia ;  and  so  late  as  1814,  in  the  case  of  Tlie 
Foltina,^  Sir  Wilham  Scott  still  asserted  the  vahdity  of 
the  principle  of  the  common  law  '  that  a  conquered  coun- 
try forms  immediately  part  of  the  King's  Dominions/  ^ 

The  first  writer  who  drew  all  the  consequences  of 
the  distinction  between  mere  military  occupation  and 
real  acquisition  of  territory  was  Hefiter  in  his  treatise 
Das  Europdiscke  Volkerrecht  der  Gegenwart,^  which 
appeared  in  1844 ;  but  it  took  the  whole  of  the  nine- 
teenth century  to  develop  the  rules  regarding  occupa- 
tion which  are  now  universally  recognised,  and  in  many 
respects  have  been  enacted  by  Articles  42-56  of  the 
Hague  Regulations. 

In  so  far  as  these  rules  touch  upon  the  treatment  of 
the  persons  and  property  of  the  inhabitants  of  occupied 
territory,  and  property  situated  thereon,  they  have 
akeady  been  considered.^  What  concerns  us  here  are 
the  rights  and  duties  of  the  occupying  beUigerent  in 
relation  to  his  poHtical  administration  of  the  territory, 
and  to  his  poHtical  authority  over  its  inhabitants.^  The 
principle  underlying  these  modern  rules  is  that,  although 
the  occupant  does  in  no  wise  acquire  sovereignty  over 
such  territory  through  the  mere  fact  of  having  occupied 
it,  he  actually  exercises  for  the  time  being  a  military 
authority  over  it.     As  he  thereby  prevents  the  legitimate 

*  See  Martens,  N.R.,  i.  p.  19.  *  §  131. 

a  1  Dod.  450.  *  ^^^^  ^^°^'^'  ^§  107-154. 

'  The  Hague  Regulations  (Articles 

•  Alluding  to  the  fact  that  the  42-56).  All  French  writers,  and 
island  of  Guadeloupe,  taken  from  many  others,  treat  under  the  heading 
the  French  in  1810,  was,  before  con-  'occupation'  not  only  these  ques- 
clusion  of  peace,  ceded  by  Great  tions,  but  also  other  matters,  such 
Britain  to  Sweden  by  Article  5  of  as  appropriation  of  public  and 
the  Treaty  of  Stockholm  of  March  private  property,  requisitions  and 
3,  1813.  But  it  would  seem  that  contributions,  destruction  of  public 
Sweden  never  took  possession  of  it.  andprivate  property,  violence  against 
At  any  rate,  by  the  Treaty  of  enemy  subjects  and  enemy  olBcials. 
London  of  August  13,  1814,  she  con-  They  have,  however,  nothing  to  do 
sented  to  its  restitution  to  France,  with  occupation,  and  are  better  dis- 
Great  Britain  paying  her  twenty-  cussed  in  connection  with  the  means 
four  million  francs  as  compensation.  of  land  warfare. 


OCCUPATION  OF  ENEMY  TERRITORY       233 

sovereign  from  exercising  his  authority,  and  claims 
obedience  for  himself  from  the  inhabitants,  he  has  to 
administer  the  country,  not  only  in  the  interest  of  his 
own  mihtary  advantage,  but  also,  at  any  rate  so  far 
as  possible,  for  the  pubhc  benefit  of  the  inhabitants. 
Thus  the  present  International  Law  not  only  gives 
certain  rights  to  an  occupant,  but  also  imposes  certain 
duties  upon  him. 

§  167.  Since   an   occupant,    although   his   power   is  Occupa- 
merely  mihtary,  has  certain  rights  and  duties,  the  first  eSted.^" 
question  is,  when,  and  under  what  circumstances,  a 
territory  must  be  considered  occupied. 

Now  it  is  certain  that  mere  invasion  is  not  occupa- 
tion. Invasion  is  the  marching  or  riding  of  troops — or 
the  flying  of  a  military  air-vessel — ^into  enemy  country. 
Occupation  is  invasion  plus  taking  possession  of  enemy 
country  for  the  purpose  of  holding  it,  at  any  rate 
temporarily.  The  difierence  between  mere  invasion 
and  occupation  becomes  apparent  by  the  fact  that  an 
occupant  sets  up  some  kind  of  administration,  whereas 
the  mere  invader  does  not.  A  small  beUigerent  force 
can  raid  enemy  territory  without  estabhshing  any 
administration,  quickly  rush  on  to  some  place  in  the 
interior  for  the  purpose  of  reconnoitring,  destroying  a 
bridge  or  depot  of  munitions  and  provisions,  and  the 
like,  and  quickly  ^vithdraw  after  having  reahsed  its 
purpose.^  Although  it  may  correctly  be  asserted  that, 
so  long  and  in  so  far  as  such  raiding  force  is  in  posses- 
sion of  a  locahty,  and  sets  up  a  temporary  administra- 
tion therein,  it  occupies  this  locahty,  yet  it  certainly 
does  not  occupy  the  whole  territory,  and  even  the 
occupation  of  this  locahty  ceases  the  moment  the 
force  withdraws. 

However  this  may  be,  as  a  rule  occupation  will  be 
coincident  with  invasion.     The  troops  march  into  a 

^  See  Land  Warfare,  §  343. 


234  WARFARE   ON   LAND 

district,  and  the  moment  they  get  into  a  village  or  town 
— unless  they  are  actually  fighting  their  way — they 
take  possession  of  the  municipal  offices,  the  post  ofiice, 
the  pohce  stations,  and  the  like,  and  assert  their  authority 
there.  From  the  mihtary  point  of  view,  such  villages 
and  towns  are  now  '  occupied.'  Article  42  of  the 
Hague  Regulations  enacts  that  territory  is  considered 
occupied  when  it  is  actually  placed  under  the  authority 
of  the  hostile  army,  and  that  such  occupation  apphes 
only  to  the  territory  where  that  authority  is  estab- 
lished, and  in  a  position  to  assert  itself.  This  defini- 
tion is  not  at  all  precise,  but  it  is  as  precise  as  a  legal 
definition  of  a  fact  such  as  occupation  can  be.  If,  as 
some  pubhcists  ^  maintain,  only  territory  of  which 
every  part  was  held  by  a  sufficient  number  of  soldiers 
to  enforce  immediately  and  on  the  spot  the  authority 
of  an  occupant,  were  to  be  regarded  as  occupied,  efiec- 
tive  occupation  of  a  large  territory  would  be  impossible, 
since  not  only  in  every  town,  village,  and  railway 
station,  but  also  in  every  isolated  habitation  and  hut 
the  presence  of  a  sufficient  number  of  soldiers  would 
be  necessary.  In  reason  no  other  conditions  ought  to 
be  laid  down  as  necessary  to  constitute  effective  occupa- 
tion in  war  than  those  under  which  in  time  of  peace 
a  sovereign  is  able  to  assert  his  authority  over  a  terri- 
tory. What  these  conditions  are  is  a  question  of 
fact,  to  be  answered  according  to  the  merits  of  the 
special  case.  When  the  legitimate  sovereign  is  pre- 
vented from  exercising  his  powers,  and  the  occupant, 
being  able  to  assert  his  authority,  actually  estabhshes 
an  administration  over  a  territory,  it  matters  not  with 
what  means,  and  in  what  ways,  his  authority  is  exercised. 
For  instance,  when  in  the  centre  of  a  territory  a  large 
force  is  estabhshed,   from  which  flying  columns  are 

^  See,  for   instance,  Hall,  §   161.       delegates   of   the   smaller  States  at 
This  was  also  the  standpoint  of  the       the  Brussels  Conference  of  1874. 


OCCUPATION  OF  ENEMY  TERRITORY      235 

constantly  sent  round  the  territory,  it  is  indeed  effec- 
tively occupied,  provided  that  there  are  no  enemy 
forces  present,  and  these  columns  can  really  keep  it 
under  control.^  Again,  when  an  army  is  marching 
on  through  enemy  territory,  taking  possession  of  the 
hnes  of  communication  and  the  open  towns,  surround- 
ing the  fortresses  with  besieging  forces,  and  disarming 
the  inhabitants  in  open  places  of  habitation,  the  whole 
territory  left  behind  the  army  is  ejSectively  occupied, 
provided  that  some  kind  of  administration  is  estabhshed, 
and  that,  as  soon  as  it  becomes  necessary  to  assert  the 
authority  of  the  occupant,  a  sufficient  force  can  within 
reasonable  time  be  sent  to  the  locahty  afiected.  The 
conditions  vary  with  those  of  the  country  concerned. 
When  a  vast  country  is  thinly  populated,  a  smaller 
force  is  necessary  to  occupy  it,  and  a  smaller  number 
of  centres  need  be  garrisoned  than  in  the  case  of  a 
thickly  populated  country.  Thus,  the  occupation  of 
the  former  Orange  Free  State  and  the  former  South 
African  Repubhc  became  effective  in  1901  some  time 
after  their  annexation  by  Great  Britain  and  the  degenera- 
tion of  ordinary  war  into  guerilla  war,  although  only 
about  250,000  British  soldiers  had  to  keep  up  the 
occupation  of  a  territory  of  about  500,000  square  miles. 
The  facts  that  all  the  towns  and  all  the  Hnes  of  com- 
munication were  in  the  hands,  and  unde?  the  admini- 
stration, of  the  British  army,  that  the  inhabitants  of 
smaller  places  were  taken  away  into  concentration 
camps,  that  the  enemy  forces  were  either  in  captivity 
or  dispersed  into  comparatively  small  guerilla  bands, 
and  finally,  that  wherever  such  bands  tried  to  make 
an  attack,  a  sufficient  British  force  could  within  reason- 

^  This  is  not  so-called  constructive  for     instance,     when     he     actually 

occupation,    but    is    really    effective  occupies  only  the  capital  of  a  large 

occupation.     An  occupation  is  con-  province,  yet  proclaims  that  he  has 

structive  only  if  an  invader  declares  therebj'  occupied  the  whole  of    the 

districts  as  occupied  over  which  he  province,  although  he  does  not  take 

does  not  actually  exercise  control —  any  steps  to  exercise  control  over  it. 


236  WARFARE   ON   LAND 

able  time  make  its  appearance,  were  quite  sufficient 
to  assert  British  authority  ^  over  that  vast  territory, 
although  it  was  more  than  a  year  before  peace  was 
j&nally  estabhshed.^ 
Occupa-  §  168.  Occupation  comes  to  an  end  when  an  occupant 
endeZ  ^°  withdraws  from  a  territory,  or  is  driven  out  of  it.  Thus, 
occupation  remains  only  over  a  limited  area  of  a  terri- 
tory if  the  forces  in  occupation  are  drawn  into  a  fortress 
on  that  territory,  and  are  there  besieged  by  the  re- 
advancing  enemy,  or  if  the  occupant  concentrates  his 
forces  in  a  certain  place  on  the  territory,  withdrawing 
before  the  re-advancing  enemy.  But  occupation  does 
not  cease  because  the  occupant,  after  having  disarmed 
the  inhabitants,  and  having  made  arrangements  for 
the  administration  of  the  country,  is  marching  on  to 
overtake  the  retreating  enemy,  leaving  only  com- 
paratively few  soldiers  behind. 
Rights  §  169.  As  the  occupant  actually  exercises  authority, 

rhitiesin  ^^^  ^^  ^hc  legitimate  Government  is  prevented  from 
^f  th^^^     exercising  its  authority,^  the  occupant  acquires  a  tem- 
Oceupant.  porary  right  of  administration  over  the  territory  and 
its  inhabitants ;   and  all  steps  he  takes  in  the  exercise 

^  It  may  well  be  doubted  whether,  British  authorities,   but  afterwards 

when  these  territories  were  annexed  had   taken  up  arms.     The   annexa- 

(see  above,  i.   §  239),  their  occupa-  tion   by   Italy,    during    the    Turco- 

tion  could  be  called  effective.     The  Italian  War,  of  Tripoli  and  Cyrenaica 

British  Government  ought  not,  there-  in    November    1911,    was    likewise 

fore,  to  have  proclaimed  their annexa-  premature.      See    above,    i.     §   239, 

tion  at  such  early  dates.     But  there  and  Rapisardi-Mirabelli  in  R.I.,  2nd 

ought    to    be    no    doubt    that    the  Ser.    xv.  (1913),  pp.    527-544.     But 

occupation    became    effective    some  see   also   Tambaro  in  the   Jahrhuch 

time  afterwards,  in  1901.     See,  how-  dea  Volkerrechts,  i.   (1913),  pp.  583- 

ever,  Sir  Thomas  Barclay  in  the  Law  629,  who  asserts  the  contrary. 
Quarterly  Reviev^  xxi.  (1905),  p.  307,  *  The    rules     regarding    effective 

who  asserts  the  contrary ;  see  also,  occupation  must   be   formulated   on 

below,    §§    264,    265.      The    Times  the  basis  of  actual  practice  quite  as 

History  of  the  War  in  South  Africa  much  as  other  rules  of  International 

(v.  p.  251)  estimates  the  number  of  Law.     Those  rules  are  not  authori- 

Boer  fighters  in  May  1901  to  have  tative    which     are    laid     down    by 

been    about    13,000.      These    armed  theorists,  but  only  those  which  are 

men  were  dispersed  into  a  very  large  abstracted  from  the  actual  practice 

number  of  guerilla  bands,  and  they  of   warfare,    and  are   unopposed  by 

were  in  a  great  many  cases  men  who  the  Powers. 
seemingly    had    submitted    to    the  ^  As   regards   the    rights    of   the 


I 


I 


OCCUPATION   OF   ENEMY   TERRITORY  237 

of  this  right  must  be  recognised   by  the  legitimate 
Govermnent  after  occupation  has  ceased.     But  as  the 
right  of  an  occupant  in  occupied  territory  is  merely  a 
right  of  administration,  he  may  neither  annex  it,  while 
the  war  continues,  nor  set  it  up  as  an  independent 
State,  nor  divide  it  (as  Germany  during  the  World  War 
divided  Belgium  ^)  into  two  administrative  districts  for 
pohtical  purposes.     Moreover,  the  administration  of  the 
occupant  is  in  no  wise  to  be  compared  with  ordinary 
administration,  for  it  is  distinctly  and  precisely  mihtary 
administration.     In  carrying  it  out  the  occupant  is 
totally  independent  of  the  constitution  and  the  laws 
of  the  territory,  since  occupation  is  an  aim  of  warfare, 
and  the  maintenance  and  safety  of  his  forces,  and  the 
purpose  of  war,  stand  in  the  foreground  of  his  interest, 
and  must  be  promoted  under  all  circumstances  and 
conditions.     But,   although  as  regards  the  safety  of 
his  army  and  the  purpose  of  war  the  occupant  is  vested 
with  an  almost  absolute  power,  as  he  is  not  the  sovereign 
of  the  territory,  he  has  no  right  to  make  changes  in 
the  laws,^  or  in  the  administration,  other  than  those 
which  are  temporarily  ^  necessitated  by  his  interest 
in  the  maintenance  and  safety  of  his  army  and  the 
reahsation  of  the  purpose  of  war.     On  the  contrary, 
he  has  the  duty  of  administering  the  country  according 
to  the  existing  laws  and  the  existing  rules  of  admini- 
stration ;  he  must  ensure  pubHc  order  and  safety,  must 
respect   family   honour   and   rights,    individual   hves, 
private    property,    rehgious    convictions    and    hberty. 
Fundamentally  important  is  Article  43  of  the  Hague 

occupant   of  such   neutral   territory  Ghent   into    a    Flemish    institution 

as  has  become  the  theatre  of  war,  was  unlawful.     See  details  in  Garner, 

see  above,  §  71.  ii.    §§  368-370.     Unlawful   also  was 

^  Garner,  ii.  §  372.  the   interference  by   the    Russians, 

*  See  below,  §  172.  while    in    occupation    of    Lemberg, 

*  There  is  no  doubt  therefore  that  with  the  schools  and  the  language 
the  conversion  by  the  Germans  in  used  for  instruction.  See  Cybich- 
occupation  of  Belgium  during  the  owski  in  Z.I.,  xxAa.  (1916),  at  pp. 
World    War   of    the    University   of  453-457. 


238  WARFARE   ON  LAND 

Regulations  :  '  The  authority  of  the  legitimate  Power 
having  actually  passed  into  the  hands  of  the  occupant, 
the  latter  shall  take  all  steps  in  his  power  to  re-estabhsh 
and  ensure,  as  far  as  possible,  pubhc  order  and  safety, 
while  respecting,  unless  absolutely  prevented,  the  laws 
in  force  in  the  country/ 
Rights  §  170.  An  occupant  having  mihtary  authority  over 
Occupant  the  territory,  the  inhabitants  are  under  his  Martial 
thrin-^"^^  Law,  and  have  to  render  obedience  to  his  commands.^ 
habitants.  Their  duty  to  obey  does  not,  of  course,  arise  from  their 
own  Municipal  Law,  nor  from  International  Law,  but 
from  the  Martial  Law  of  the  occupant  to  which  they 
are  subjected.  However,  the  power  of  the  occupant 
over  the  inhabitants  is  not  unrestricted,  for  Articles  23, 
44,  and  45  of  the  Hague  Regulations  ^  expressly  enact 
that  he  is  prohibited  from  compelling  the  inhabitants 
to  take  part  in  mihtary  operations  against  the  legiti- 
mate Government,  or  to  give  information  concerning 
the  army  of  the  other  belhgerent  or  his  means  of  defence. 
Nor  may  he  compel  them  to  take  an  oath  of  allegiance. 
Since  the  authority  of  the  occupant  is  not  sovereignty, 
the  inhabitants  owe  no  temporary  allegiance  to  him. 
On  the  other  hand,  he  may  compel  them  to  take  an 
oath  —  sometimes  called  an  '  oath  of  neutrahty  ' — to 
abstain  from  taking  up  a  hostile  attitude  against  him 
and  wilhngly  to  submit  to  his  legitimate  commands ; 
and  he  may  punish  them  severely  for  breaking  this 
oath.  He  may  make  requisitions  and  demand  con- 
tributions ^  from  them.  He  may  compel  them  to 
render  services  as  drivers  or  farriers,  and  may  com- 
pulsorily  employ  them  to  bury  the  dead,  collect  and 

^  As    to    the     restrictions    upon  enemy  colonies  populated  by  natives 

personal    liberty   and    patriotic    de-  and  having  only  a  few  white  settlers, 

monstrations  imposed   on   occupied  the   latter   must    not  be   deported, 

Belgium   during    the    World    War,  unless  it  is  a  military  necessity  to 

see  Gamer,  ii.  §  366-367.  do  so. 

*  Although  the  Hague  Regulations 
cannotliterallybe  applied  in  occupied  '  See  above,  §§  147,  148. 


OCCUPATION   OF   ENEMY   TERRITORY  239 

remove  the  wounded,  and  bring  up  stores,  supplies, 
baggage,  and  the  hke,^  provided — see  Article  52  of  the 
Hague  Regulations — the  services  required  do  not  obhge 
them  to  take  part  in  mihtary  operations  against  their 
own  country.  He  may  compel  them  to  render  services 
for  the  repair  of  roads,  bridges,  buildings  or  other 
works  damaged  or  destroyed  by  mihtary  operations, 
or  necessary  either  for  the  administration  of  the  country 
or  for  the  needs  of  the  army  of  occupation,  always  pro- 
vided that  the  services  do  not  involve  taking  part  in 
mihtary  operations. 

Yet  the  meaning  of  '  taldng  part  in  mihtary  opera- 
tions '  is  somewhat  controversial.  Many  writers  main- 
tain, and  Land  Warfare  ^  likewise  asserts,  that  the  words 
extend  to  the  construction  of  bridges,  fortifications,  and 
the  hke,  even  behind  the  front.  But  the  practice  ^ 
of  belligerents  has  always  distinguished  between  mihtary 
operaiians  and  mihtary  pre'paratio7is,  and  has  not  con- 
demned as  inadmissible  the  compulsion  of  inhabitants 
to  render  assistance  in  the  construction  of  mihtary 
roads,  fortifications,  and  the  hke  behind  the  front,  or  in 
any  other  works  in  preparation  for  mihtary  operations. 
No  doubt  attempts  have  been  made  to  obtain  the  pro- 
hibition of  the  requisitioning  of  even  such  services  as 
only  involve  taking  part  in  mihtary  preparations.  Thus 
the  Russian  draft  put  before  the  Conference  of  Brussels 
in  1874  proposed  ^  to  stipulate  that  the  population  of  an 
occupied  province  might  not  be  forced  to  take  part  in 
the  mihtary  operations  against  their  own  Government, 
or  in  such  acts  as  are  contributory  to  the  realisation  of  the 

^  Formerlj'  he  could  likewise  com-  Article   44,    so   that   in   the  World 

pel  them  to  render  serrices  as  guides,  War   the   old    rule    was   valid   that 

but     this    was     prohibited    by   the  inhabitants    may   be    compelled    to 

wording  which   Article  44  received  serve  as  guides. 

from  the  Second  Hague  Conference.  *  s  391^ 

But     Germany,     Austria  -  Hungary,  , 

Japan,     Montenegro,     and     Russia  bee  above,  §§  116  n.,  126  n. 

signed   with   a   reservation    against  *  Article  48. 


240  WARFARE   ON  LAND 

aims  of  war  detrimental  to  their  own  country ;  but  the 
conference  struck  out  the  words  in  itahcs.  It  is  true 
that  the  Oxford  Manuel  des  Lois  de  la  Guerre  sur  Terre 
of  the  Institute  of  International  Law  did  lay  down^ 
the  rule  that  an  occupant  must  not  compel  inhabitants, 
either  to  take  part  in  the  military  operations,  or  to 
assist  him  in  his  works  of  attack  or  defence ;  but  the 
Hague  Conferences  did  not  adopt  this  rule,  and  Article 
52  of  the  Hague  Regulations  prohibits  the  requisition- 
ing of  such  services  only  as  imply  an  obhgation  to  take 
part  in  mihtary  operations.  It  is  apparent  that  all 
attempts  to  extend  the  prohibition  to  services  which 
imply  an  obhgation  to  take  part  in  mihtary  f  repara- 
tions and  the  hke  have  hitherto  failed. 

During  the  World  War,  not  only  the  Germans  in 
Belgium  and  France,^  but  also  the  Russians  in  Gahcia,^ 
compelled  the  inhabitants  to  construct  fortifications  and 
trenches  in  the  rear,  although  a  generous  interpretation 
of  Article  52  ought  to  have  prevented  them  from  doing 
so.  It  is  to  be  hoped  that  a  future  conference  will  so 
amend  the  Hague  Regulations  as  to  make  the  matter  clear. 

However  this  may  be,  there  is  no  right  to  deport 
inhabitants  to  the  country  of  the  occupant,  for  the 
purpose  of  compelhng  them  to  work  there.  When 
during  the  World  War  the  Germans  deported  to 
Germany  several  thousands  of  Belgian  ^  and  French 
men  and  women,  and  compelled  them  to  work  there, 
the  whole  civihsed  world  stigmatised  this  cruel  prac- 
tice as  an  outrage. 

The  occupant  may  collect  the  ordinary  taxes,  dues, 
and  tolls  imposed  for  the  benefit  of  the  State  by  the 
legitimate  Government.     But  in  such  case  he  is,  accord- 

^  Article  48  (2).  tiona  beiges  a  la  Lumiere  des  Docu- 

*  See  details  in  Gamer,  ii.  §  400.  merits  allemands  (1917)  ;  Basdevant, 

*  See  Cybichowski  in  Z.I.,  xivi.  Lea    Deportations    du    Nord   de   la 
(1916),  p.  467.  France  et  de  la  Belgique  en  vue  du 

*  See  Heuvel  in  R.O.,  xxiv.  (1917),  Travail  ford  et  le  Droit  international 
pp.  261-300;  Passelecq,  Lea  Deporta-  (1917) ;  Garner,  ii.  §§  413-430. 


OCCUPATION   OF   ENEMY   TERRITORY  241 

ing  to  Article  48  of  the  Hague  Regulations,  obliged  to 
make  the  collection,  as  far  as  possible,  in  accordance 
with  the  rules  in  existence  and  the  assessment  in  force, 
and  he  is  bound  to  defray  the  expenses  of  the  admini- 
stration of  the  occupied  territory  on  the  same  scale  as 
that  by  which  the  legitimate  Goverimient  was  bound. 
Whoever  does  not  comply  with  his  commands,  or 
commits  a  prohibited  act,  may  be  punished  by  him ; 
but  Article  50  of  the  Hague  Regulations  expressly 
enacts  the  rule  that  no  general  penalty,  'pecuniary  or 
otherwise,  may  he  inflicted  on  the  population  on  account 
of  the  acts  of  individuals  for  which  it  cannot  he  regarded 
as  collectively  responsible}  It  must,  however,  be  specially 
observed  that  this  rule  unfortunately  does  not  at  all 
prevent  ^  reprisals  by  an  occupant  in  case  acts  of 
illegitimate  warfare  are  committed  by  enemy  individuals 
not  belonging  to  the  armed  forces,  although  in  practice 
innocent  individuals  are  thereby  punished  for  illegal 
acts  for  which  they  are  neither  legally  nor  morally 
responsible.  For  instance,  a  village  is  bm^ned  by  way 
of  reprisal  for  a  treacherous  attack  committed  there 
on  enemy  soldiers  by  some  unknown  individuals.^ 
Nor  does  Article  50  prevent  an  occupant  from  taking 
hostages  ^  to  safeguard  hues  of  communication  threatened 
by  guerillas  not  belonging  to  the  armed  forces,  or  for 
other  purposes,^  provided  that  he  does  not  kill  them, 

^  The  Germans  during  their  occu-  fication  alleged  by  Germany  for  the 

pation   of    Belgium    and    Northern  burning  of  Louvain.     Garner,  i.   §§ 

France  in  the  World  War  regularly  282-284. 

inflicted     general     penalties.       See  ■*  But  this  is  a  moot  point ;    see 

details   in   Garner,    ii.    §§    403-412,  below,  S  259. 

where  the  interpretation  of  Article  '"  Belligerents      sometimes      take 

50  is  also  discussed.  hostages  for  the  purpose  of  securing 

*  See  Holland,   War,  No.  110,  and  compliance   with  demands   for  con- 

Land  Warfare,  S§  38o-3St>.     See  also  tributions,  requisitions,  and  the  like. 

Zorn,    pp.    239-243,    where   an    im-  As  long  as  such  hostages  obtain  the 

portant  interpretation  of  Article  50  same  treatment  as  prisoners  of  war, 

is   discussed  ;  and  Garner  in  A. J.,  the   practice   does   not   seem    to   be 

I    xi.  (1917),  pp.  511-537.  illegal,  although  the  Hague  Regula- 

I        *  See    below,  §§  248,  250,    where  tions  do  not  mention  it,  and  many 

I    objections  against  the  existing  law  publicists  condemn  it ;    see  above,  § 

*.    are  formulated.     This  was  the  justi-  116  n.,  and  below,  §  259  n. 

VOL.   II.  Q 


242 


WAEFARE   ON  LAND 


although  they  must  sufier  for  acts  or  omissions  of 
others,  for  which  they  are  neither  legally  nor  morally 
responsible. 

In  the  treatment  of  the  inhabitants  of  enemy  terri- 
tory,   the    occupant    need    not    make    any    difference 
between  subjects  of  the  enemy  and  subjects  of  neutral 
States  ;  ^   and  resident  subjects  of  neutral  States  have 
no  claim,  any  more  than  have  subjects  of  the  enemy, 
against  him  for  compensation  for  losses  sustained  in 
consequence  of  legitimate  acts  ^  of  war  on  his  part.^ 
§  171.  As,   through  occupation,   authority  over  the 
offi!  territory  actually  passes  into  the  hands  of  the  occupant, 
ciaisand   j^g  may,  for  the  time  of  his  occupation,  depose  all 

Municipal  ''  n^    •    -i  n  •    •       i    c  •  •  i 

Function-  Government  oincials  and  mumcipal  lunctionaries  that 
during  Oc-  liave  not  withdrawn  with  the  retreating  enemy.  On 
cupation.  ^}^g  other  hand,  he  must  not  compel  them  by  force  to 


Position 
of  Govern 
ment 


^  See  above,  §  88,  and  Frankenbach, 
Die  Rechtsttellung  von  neutralen 
Staatsangehorigen  in  kriegfiihrenden 
Staaten  (1910),  pp.  46-50;  Pitt 
Cobbett,  Cases  and  Ojjinioni  on 
International  Law  (3rd  ed.  1913),  ii. 
pp.  256-270 ;  Hirsch,  Die  rechtliche 
Stellung  der  AwjeMrigen  neutraler 
Staaten  (1914),  pp.  80-84;  Borchard, 
§§101,  103. 

*  Hardman's  case  (see  A. J.,  \u. 
(1913),  p.  879)  is  a  good  example. 
William  Hardman  was  a  British 
subject  resident  in  Siboney,  a  town 
in  Cuba,  when  in  1898,  during  the 
Spanish-American  War,  it  was  occu- 
pied by  armed  forces  of  the  United 
States.  As  there  was  an  outbreak  of 
sickness  among  the  American  troops, 
and  fear  of  yellow  fever,  the  American 
militarj'  authorities  found  it  neces- 
sary, in  the  interest  of  the  health 
of  the  troops,  to  destroy  by  fire  a 
number  of  houses,  together  with  all 
the  furniture  and  personal  belongings 
of  the  inhabitants.  Hardman  was 
one  of  these  unfortunate  inhabitants, 
and,  after  the  end  of  the  war,  the 
British  Government  claimed  on  his 
behalf  the  sum  of  £93  as  the  value 
of  his  destroyed  personal  property. 
Both  the  British  and  American 
Governments  agreed  that  a  subject  of 


a  neutral  Power  resident  in  an  enemy 
country  during  military  occupation 
cannot  legally  claim  compensation 
for  losses  sustained  by  an  act  of  war 
on  the  part  of  the  occupant ;  but  the 
British  Government  maintained  that 
the  burning  of  the  houses  in  Siboney 
was  not  an  act  of  war,  but  simply  a 
measure  for  better  securing  the  health 
of  the  American  troops.  The  case 
was  one  of  those  decided  in  1913  by 
the  British  and  American  Claims 
Commission.  The  arbitrators  gave 
their  award  against  the  British 
Government,  because  they  considered 
the  act  to  be  an  act  of  war,  but  re- 
commended the  American  Govern- 
ment to  indemnify  Hardman  for  the 
loss  suffered,  as  an  act  of  grace. 

*  But  a  belligerent  may,  of  course, 
grant  compensation  nevertheless. 
Thus  when  in  1914,  during  the  World 
War,  after  the  occupation  of  Li6ge, 
the  Germans  executed  a  number  of 
civilians,  and  among  them  five 
Spaniards,  by  way  of  reprisal  for 
alleged  attacks  by  the  civilian 
population  upon  German  soldiers, 
they  granted  monetary  compensation 
to  the  families  of  the  unfortunate 
Spaniards,  although  they  asserted 
that  their  execution  was  justified  as 
reprisals. 


OCCUPATION   OF   ENEMY   TERRITORY  243 

carry  on  their  functions  during  occupation,  if  they 
refuse  to  do  so,  except  where  mihtary  necessity  for  the 
carrying  on  of  a  certain  function  arises.  If  they  are 
wilHng  to  serve  under  him,  he  may  make  them  take  an 
oath  of  obedience,  but  not  of  allegiance,  and  he  may 
not  compel  them  to  carry  on  their  functions  in  his 
name,  though  he  may  prevent  them  from  doing  so  in 
the  name  of  the  legitimate  Government.^  Since,  accord- 
ing to  Article  43  of  the  Hague  Regulations,  he  has  to 
secure  pubhc  order  and  safety,  he  must  temporarily 
appoint  other  functionaries  in  case  those  of  the  legiti- 
mate Government  refuse  to  serve  under  him,  or  are 
deposed  by  him  for  the  time  of  the  occupation. 

§  172.  The  particular  position  which  courts  of  justice  Position 
have  nowadays  in  civilised  countries,  makes  it  necessary  "{ ju^t^e 
to  discuss  their  position  during  occupation.^    As  has  during  Oc- 

^  1  1      A  •  cupation. 

already  been  explained,^  the  British  and  American 
interpretation  of  Article  23(/i)  of  the  Hague  Regu- 
lations is  that  it  prohibits  an  occupant  of  enemy 
territory  from  declaring  extinguished,  suspended,  or 
unenforceable  in  a  court  of  law  the  rights  and  the 
rights  of  action  of  the  inhabitants  ;  and  Article  43 
provides  that  the  occupant  must  respect,  unless  abso- 
lutely prevented,  the  laws  in  force  in  the  country.  But 
an  occupant  may,  where  necessary,  set  up  mihtary 
courts  instead  of  the  ordinary  courts  ;  and  in  case,  and 
in  so  far  as,  he  admits  the  administration  of  justice  by 
the  ordinary  courts,  he  may  nevertheless,  so  far  as  it 
is  necessary  for  military  purposes,  or  for  the  mainte- 
nance of  pubhc  order  and  safety,  temporarily  alter  the 

^  Man}'  publicists  assert   that  in  own   interest   to  pay  such   salaries, 

case  an  occupant  leaves  officials  of  and  he  will  as  a  rule  do  this.     Only 

the  legitimate  Government  in  office,  in  the  case  of  Article  48  of  the  Hague 

he  '  must '  pay  them  their  ordinary  Regulations  is  he  compelled  to  do  it. 

salaries.      But   I    cannot    see    that  ,  g^^  p^^.^    L' Administrafion  de 

there  is  a  customary  or  conventional  j      .^^  ^^  Territcire  occupi.  (1900). 

rule    in    existence    concerning   this  ^ 

point.     But  it  is  in  an  occupant's  '  See  above,  §  100a. 


244  WARFARE   ON   LAND 

laws,  especially  the  Criminal  Law,  on  the  basis  of  which 
justice  is  administered,  as  well  as  the  laws  regarding 
procedure.^ 

There  is  no  doubt  that  an  occupant  may  suspend  the 
judges  ^  as  well  as  other  ofi&cials.  However,  if  he 
does  suspend  them,  he  must  temporarily  appoint  others 
in  their  place.  If  they  are  wilhng  to  serve  under  him, 
he  must  respect  their  independence  according  to  the 
laws  of  the  country.  He  has,  however,  no  right  to 
constrain  the  courts  to  pronounce  their  verdicts  in  his 
name,  although  he  need  not  allow  them  to  pronounce 
verdicts  in  the  name  of  the  legitimate  Government. 
A  case  that  happened  during  the  Franco- German  War 
may  serve  as  an  illustration.  In  September  1870,  after 
the  fall  of  the  Emperor  Napoleon  and  the  proclama- 
tion of  the  French  Repubhc,  the  Court  of  Appeal  at 
Nancy  pronounced  its  verdicts  *  in  the  name  of  the 
French  Government  and  People.'  Since  Germany  had 
not  yet  recognised  the  French  Repubhc,  the  Germans 
ordered  the  court  to  use  the  formula  '  In  the  name  of  the 
High  German  Powers  occupying  Alsace  and  Lorraine,' 
but  gave  it  to  understand  that,  if  it  objected  to  this 
formula,  they  were  disposed  to  admit  another,  and 
were  even  ready  to  admit  the  formula  '  In  the  name  of 
the  Emperor  of  the  French,'  as  the  Emperor  had  not 
abdicated.  The  court,  however,  refused  to  pronounce 
its  verdict  otherwise  than  '  in  the  name  of  the  French 
Government  and  People,'  and,  consequently,  suspended 
its  sittings.  There  can  be  no  doubt  that  the  Germans 
had  no  right  to  order  the  formula  '  In  the  name  of  the 
High  German  Powers,  etc.,'  to  be  used,  but  they  were 
certainly  not  obhged  to  admit  the  formula  preferred 

^  As  to  the  practice  followed  by  the  judges  by  the  Russians  during  their 

Germans  in  occupied  Belgium  during  occupation  of  Lemberg  in  the  Worid 

the    World    War,    see   Garner,    ii.  War,  see  Cybichowgki  in  ^./.,  xxvi. 

§§  365-367,  373-376.  (1916),  at  p.  452. 

*  As   to   the   removal    of    Jewish 


OCCUPATION  OF  ENEMY  TERRITORY       245 

by  the  court ;  and  the  fact  that  they  were  disposed 
to  admit  another  formula  ought  to  have  made  the 
court  accept  a  compromise.  Bluntschh  ^  correctly 
maintains  that  the  most  natural  solution  of  the  diffi- 
culty would  have  been  to  use  the  neutral  formula  '  In 
the  name  of  the  Law.' 

On  the  other  hand,  during  the  occupation  of  Belgium 
in  the  World  War,  Germany  did  not  interfere  with  the 
practice  of  the  Belgian  courts  of  pronouncing  and 
executing  their  verdicts  in  the  name  of  the  King  of 
the  Belgians.^  But  matters  changed  when  in  1918  the 
Belgian  courts  suspended  their  sittings  in  consequence 
of  the  deportation  of  some  of  the  judges,  and  German 
courts  were  set  up  in  their  place. ^ 

»  §  547.  (191§),  p.  805. 

*  See     Deutsche     Jurisien-Zeitung  ^  See  Garner,  ii.  §§  377-378. 


CHAPTER   lY 

WARFARE   ON  SEA 

I 

ON  SEA  WAKFARE  IN  GENERAL 

Hall,  §  147— La-wTence,  §§  193-194— Westlake,  ii.  pp.  136-154— Maine,  pp. 
117-122— Manning,  pp.  183-184— PhilUmore,  iii.  §  347— Twiss,  ii.  §  73 
— Halleck,  ii.  pp.  80-82— Taylor,  §  547— Wharton,  iii.  §§  342-345— 
Wheaton,  §  355— Bluntschli,  §§  665-667— Heffter,  §  139— Geffcken  in 
Roltzendorff,  iv.  pp.  547-548,  571-581— UUmann,  §§  187-188— Bonfils, 
Nos.  1268,  1294-1338— Despagnet,  Nos.  647-649— Pradier-Fod6r6,  viii. 
Nos.  3066-3090,  3107-3108— Nys,  iii.  pp.  391-432— Rivier,  ii.  pp.  329- 
335— Calvo,  iv.  §§  2123,  2379-2410— Fiore,  iii.  Nos.  1399-1413— Fillet, 
pp.  118-120— Perels,  §  36— Testa,  pp.  147-157— Boeck,  Nos.  3-153— 
Lawrence,  International  Problems  and  Hague  Conferences  (1908),  pp. 
178-206 — Westlake,  Papers,  pp.  250-258 — Reddie,  Researches,  passim — 
Ortolan,  ii.  pp.  35-50 — Hautefeuille,  i.  pp.  161-167 — Schramm,  §§  1,  8 — 
Wehberg,  §§  1,  2 — Scholz,  Die  seekriegsrechtliche  Bedeutung  von  Flotten- 
stiUzpunkten  (1918),  passim  —  Gessner,  Westlake,  Lorimer,  Rolin- 
Jaequemyns,  Laveleye,  Alb6ric  Rolin,  and  Pierantoni  in  R.I.,  vii.  (1875), 
pp.  236-272,  558-656- Twiss  in  R.I.,  xvi.  (1884),  pp.  113-137— Quigley 
in  A.J.,  xi.  (1917),  pp.  22-45— Bower  in  A.J.,  xiii.  (1919),  pp.  60-78— 
See  also  the  authors  quoted  below,  §  178. 

Aims  and  §  173.  The  puipose  of  war  is  the  same  in  the  case  of 
Means  o  ^qAoxq  on  land  or  on  sea — namely,  the  overpowering 
Warfare,  of  the  enemy.  But  sea  warfare  serves  this  purpose  by 
attempting  the  accomphshment  of  aims  different  from 
those  of  land  warfare.  Whereas  the  aims  of  land 
warfare  are  defeat  of  the  enemy  army  and  occupation 
of  the  enemy  territory,  the  aims  ^  of  sea  warfare  are  : 
defeat  of  the  enemy  navy ;  annihilation  of  the  enemy 
merchant  fleet ;    destruction  of   enemy  coast  fortifi- 

*  Aims  of  sea  warfare  must  not  be  confounded  with  ends  of  war ;   see 
above,  §  66. 


ON  SEA  WARFARE  IN  GENERAL         247 

cations,  and  of  maritime  as  well  as  military  establish- 
ments on  the  enemy  coast ;  cutting  of!  intercourse 
with  the  enemy  coast;  prevention  of  carriage  of 
contraband  and  of  rendering  unneutral  service  to  the 
enemy  ;  all  kinds  of  support  to  mihtary  operations  on 
land,  such  as  protection  of  a  landing  of  troops  on  the 
enemy  coast ;  and  lastly,  defence  of  the  home  coast 
and  protection  to  the  home  merchant  fleet.^  The 
means  by  which  belligerents  in  sea  warfare  endeavour  to 
realise  these  aims  are  :  attack  on,  and  seizure  of,  enemy 
vessels,  violence  against  enemy  individuals,  appropriation 
and  destruction  of  enemy  vessels  and  sea-borne  enemy 
goods,  requisitions  and  contributions,  bombardment  of 
the  enemy  coast,  cutting  of  submarine  cables,  blockade, 
espionage,  treason,  ruses,  and  capture  of  neutral  vessels 
carrying  contraband  or  rendering  unneutral  service. 

§  174.  As  in  land  warfare,  so  in  sea  warfare  not  every  Lawful 
practice  capable  of  injuring  the  enemy  in  offence  and  ^^law-fui 
defence  is  lawful.     Although  no  regulations  regarding  Practices 
the  laws  of  war  on  sea  have  as  yet  been  enacted  by  a  Warfare, 
general  law-making  treaty  corresponding  to  the  Hague 
Regulations,  there  are  treaties  concerning  specialfpoints 
— ^such  as  submarine  mines,  bombardment  by  naval 
forces — and  customary  rules  of  International  Law  which 
regulate  the  matter.     Be  that  as  it  may,  the  rules  con- 
cerning means  of  sea  warfare,  though  in  many  points 
identical  with  the  rules  in  force  regarding  warfare  on 
land,  differ  from  them  in  many  respects,  and  therefore 
must  be  discussed  separately  in  the  following  sections. 
Blockade  and  the  capture  of  vessels  carrying  contra- 
band and  rendering  unneutral  service  to  the  enemy, 
although  they  are  means  of  warfare  against  an  enemy, 
are  of  such  importance  as  regards  neutral  trade  that 
they  will  be  discussed  imder  'neutrahty.'^ 

*  See  the  aims  of  sea  Marfare  enumerated  in  Article  1  of  the  U.S.  Naval 
War  Code.  *  §§  368-413a. 


248  WARFARE   ON  SEA 

Objects  of     §  175.  "WTiereas    the    objects    against   which    means 
of  Sea^^"^  of  land  warfare  may  be  directed  are  innumerable,  the 
Warfare,   nuniber  of  the   objects  against  which   means  of  sea 
warfare  are  directed  is  hmited  to  six.     The  chief  object 
is  enemy  vessels,  whether  pubHc  or  private  ;   the  next, 
enemy  individuals,  with  distinction  between  those  taking 
part  in  fighting  and  others ;  the  third,  sea-borne  enemy 
goods ;  the  fourth,  the  enemy  coast ;  the  fifth  and  sixth, 
neutral  vessels  attempting  to  break  blockade,  carrying 
contraband,  or  rendering  unneutral  service  to  the  enemy. 
Develop-       §  176.  It  is  evident  that  in  times  when  a  belhgerent 
Inter-       could  dcstroy  all  public  and  private  enemy  property  he 
national    ^^g  g^j^jg  ^^  seizc,   uo  spccial  rulc  existed  regarding 
regarding  private    enemy    ships    and    private    enemy    property 
Property   Carried  on  the  sea.     But  the  practice  of  sea  warfare 
on  Sea.     frequently  went  beyond  the  Hmits  of  even  so  wide  a 
right,  treating  neutral  goods  on  enemy  ships  as  enemy 
goods,    and   neutral   ships   carrying   enemy   goods   as 
enemy  ships.     It  was  not  until  the  time  of  the  Conso- 
lato  del  Mare,  in  the  fourteenth  century,  that  a  set 
of  clear  and  definite  rules  with  regard  to  private  enemy 
vessels  and  private  enemy  property  on  sea  in  contra- 
distinction to   neutral  ships   and  neutral  goods   was 
adopted.    According  to  this  famous  collection  of  mari- 
time usages  observed  by  the  communities  of  the  Medi- 
terranean, there  is  no  doubt  that  a  belhgerent  may 
seize  and  appropriate  all  private  enemy  ships  and  goods. 
But  a  distinction  is  made  if  either  ship  or  goods  are 
neutral.    Although   an   enemy   ship   may   always    be 
appropriated,  neutral  goods  thereon  have  to  be  restored 
to  the  neutral  owners.     On  the  other  hand,   enemy 
goods  on  neutral  ships  may  be  appropriated,  but  the 
neutral  ships  carrying  such  goods  must  be  restored  to 
their  owners.     However,  these  rules  of  the  Consolato 
del  Mare  were  not  at  all  generally  recognised,  although 
they  were  adopted  by  several  treaties  between  single 


ON  SEA  WARFARE  IN  GENERAL         249 

States  during  the  fourteenth  and  fifteenth  centuries. 
Neither  the  communities  belonging  to  the  Hanseatic 
League,  nor  the  Netherlands  and  Spain  during  the  War 
of  Independence,  nor  England  and  Spain  during  their 
wars  in  the  sixteenth  centuiy,  adopted  these  rules  ; 
and  France  expressly  enacted  by  Ordinances  of  1543 
(Article  42)  and  1584  (Article  69)  that  neutral  goods 
on  enemy  ships  as  well  as  neutral  ships  carrying  enemy 
goods  should  be  appropriated.^  Although  in  1650 
France  adopted  the  rules  of  the  Consolato  del  Mare, 
Louis  XIV.  dropped  them  again  by  the  Ordinance  of 
1681,  and  re-enacted  that  neutral  goods  on  enemy 
ships,  and  neutral  ships  carrying  enemy  goods,  should 
be  appropriated.  Spain  enacted  the  same  rules  in 
1718.  The  Netherlands,  in  contradistinction  to  the 
Consolato  del  Mare,  endeavom'ed  by  a  number  of  treaties 
to  foster  the  principle  that  the  flag  covers  the  goods, 
so  that  enemy  goods  on  neutral  vessels  were  exempt 
from,  whereas  neutral  goods  on  enemy  vessels  were 
subject  to,  appropriation.  On  the  other  hand,  through- 
out the  eighteenth  century,  and  during  the  nineteenth 
century  down  to  the  begimiing  of  the  Crimean  War  in 
1854,  England  adhered  to  the  rules  of  the  Consolato  del 
Mare.  Thus,  no  generally  accepted  rules  oi  Inter- 
national Law  regarding  private  property  on  sea  were 
in  existence.^  Matters  were  made  worse  by  privateering, 
which  was  generally  recognised  as  lawful,  and  by  the 
fact  that  belligerents  frequently  declared  a  coast 
blockaded  without  having  a  sufficient  number  of  men- 
of-war  on  the  spot  to  make  the  blockade  effective.  It 
was  not  until  the  Declaration  of  Paris  in  1856  that 
general  rules  of  International  Law  regarding  private 
property  on  sea  came  into  existence. 

*  Robe  d'ennemy  confisque  celle  cken  in  Holtzendorff,  iv.  pp.  571- 
d^amy.  Confiscantur  ex  navihxLS  res,  578,  give  excellent  summaries  of  the 
ex  rehtis  naves.  facts. 

*  Boeck,    Nos.    3-103,    and    Geff- 


250 


WARFAEE   ON  SEA 


§177. 


Declara- 

Paris!      outbreak  of  the  Crimean  War  in  1854 


Things  began  to  undergo  a  change  with  the 

all  the  belH- 

gerents  proclaimed  that  they  would  not  issue  letters 
of  marque  ;  Great  Britain  declared  that  she  would  not 
seize  enemy  goods  on  neutral  vessels  ;  and  France 
declared  that  she  would  not  appropriate  neutral  goods 
on  enemy  vessels.  Although  this  alteration  of  attitude 
on  the  part  of  the  beUigerents  was  originally  intended 
for  the  Crimean  War  only  and  exceptionally,  it  led 
after  the  conclusion  of  peace  in  1856  to  the  famous  and 
epoch-making  Declaration  of  Paris/  which  enacted  the 
four  rules — (1)  that  privateering  is  abohshed,  (2)  that 
the  neutral  ^  flag  covers  enemy  goods  ^  with  the  excep- 
tion of  contraband  of  war,  (3)  that  neutral  goods,  con- 
traband of  war  excepted,  are  not  liable  to  capture 
under  the  enemy  flag,  (4)  that  blockades,  in  order  to 
be  binding,  must  be  effective,  i.e.  maintained  by  a 
force  sufficient  really  to  prevent  access  to  the  coast  of 
the  enemy.     Since,  with  the  exception  of  the  United 


»  See  Martens,  N.R.G.,  xv.  p.  767, 
and  above,  vol.  i.  §  559.  See  also 
Piggott,  The  Declaration  of  Paris 
(1919),  who  is  an  opponent  of  the 
declaration. 

"  Only  the  neutral  flag  covers 
enemy  goods,  not  the  flag  of  a 
belligerent,  who  may,  therefore, 
seize  enemy  goods  carried  by  his 
own  merchantmen  (The  Roumanian, 
(1915)  1  B.  and  C.  P.  C.  536.  See 
above,  §  102,  and  below,  §  196  n. ). 
The  neutral  flag  protects  enemy 
goods  only  so  long  as  they  are  under 
it ;  they  lose  protection  so  soon  as 
they  are  transhipped  into  lighters 
( The  Dandolo,  (1916)  2  B.  and  C.  P.  C. 
339).  On  the  other  hand,  when 
enemy  goods  shipped  in  enemy 
vessels  before  the  outbreak  of  war 
are  transhipped  in  transitu  into 
neutral  vessels,  the  neutral  flag  does 
not  protect  them  (The  Jeanne,  (1916) 
2  B.  and  C.  P.  C.  227  ;  The  Bawean, 
(1917)  3  B.  and  C.  P.  C.  116;  The 
Vesta,  [1920]  P.  385).  Although  the 
Declaration  of  Paris  is  a  declara- 
tion in  favour  of  neutral  commeroe, 


not  only  the  neutral  concerned,  but 
also  the  enemy  can  claim  restitution 
of  non-contraband  goods  seized  in 
spite  of  being  carried  by  a  neutral 
vessel  (The  Dirigo,  (1919)  3  B.  and 
C.  P.  C.  439). 

^  It  has  been  asserted — see,  for 
instance,  Rivier,  ii.  p.  429,  and 
Schramm,  p.  93 — that  the  neutral 
flag  covers  only  private,  not  public, 
enemy  property,  and  therefore  that 
such  goods  on  neutral  vessels  as 
belong  to  the  State  of  the  enemy 
may  be  seized  and  appropriated. 
The  Italian  Prize  Court  in  1912,  dur- 
ing the  Turco-Italian  War,  in  The 
Sheffield,  The  Newa,  and  The  Men- 
zale,  gave  its  decision  in  favour  of 
this  opinion  (see  Coquet  in  R.O., 
xxi.  (1914),  pp.  281-290).  However, 
the  Declaration  of  Paris  speaks  of 
marchandise  neutre  without  any 
qualification,  only  excepting  con- 
traband goods,  and  it  ought  not 
therefore  to  be  maintained  that 
public  enemy  property  does  not  en- 
joy the  protection  of  the  neutral 
flag.     See  below,  §  319  n. 


ON  SEA  WARFARE  IN  GENERAL         251 

States  of  America  and  a  few  other  States,  all  members 
of  the  Family  of  Nations  are  now  parties  to  the  Declara- 
tion of  Paris,  it  may  well  be  maintained  that  the  rules 
quoted  are  general  International  Law,  the  more  so  as 
the  non-signatory  Powers  have  hitherto  in  practice 
always  acted  in  accordance  with  those  rules.  ^ 

However,  through  the  apphcation  of  the  doctrine  of 
continuous  voyages  by  the  United  States  during  the 
Civil  War  in  the  form  of  the  doctrine  of  continuous 
transports,^  through  the  application  of  that  doctrine 
even  to  conditional  contraband  during  the  World  War, 
by  a  number  of  presumptions  of  hostile  destination, 
by  the  imposition  of  a  duty  upon  a  neutral  consignor 
of  proving  the  innocent  destination  of  the  cargo,  and 
by  an  enormous  extension  of  the  Hst  of  contraband,^ 
the  rule  of  the  Declaration  of  Paris  that  a  neutral  flag 
covers  enemy  goods  with  the  exception  of  contraband 
of  war,  has  to  a  great  extent  been  frustrated."* 

S  178.  The  Declaration  of  Paris  did  not  touch  the  The  Pnn- 
old  rule  that  private  enemy  vessels  and  private  enemy  App^ro- 
goods  thereon,  or  on  ships  of  the  captming  belhgerent,  ^"p^j^^^e 
may  be  seized  and  appropriated,  and  this  rule  is,  there-  Enemy 
fore,  as  vaHd  as  ever,  although  there  is  much  agitation  and^^  ^ 
for  its  aboHtion.     In   1785,   Prussia  and  the  United  ^nemy 

'  _  .         Goods 

States  of  America  had  already  stipulated  by  Article  thereon. 
23  of  their  Treaty  of  Friendship  ^  that  in  case  of  war 
between  them  merchantmen  should  not  be  seized  and 
appropriated.  Again,  in  1871,  the  United  States  and 
Italy,  by  Article  12  of  their  Treaty  of  Commerce,^ 
stipulated  that  in  case  of  war  between  them  merchant- 
men, with  the  exception  of  those  carrying  contraband 

*  That  there  is  an  agitation  for  *  See  Quigley,    The  Immunity  of 

the  abolition  of  the  Declaration  of  Private   Property  from    Capture   at 

Paris    has    been    mentioned   above,  Sea  (1918),  and  in  A.J.,  xi.  (1917), 

§  83  n.  pp.  22-31. 

t  o      u  1        o  ^ni  ^  See  Martens,  R.,  iv.  p.  37. 

See  below,  §  401.  e  gee  Martens,  N.R.G.,  2nd  Ser. 

»  See  below,  §§  393,  394,  403o.  i.  p.  57. 


252  WARFARE   ON   SEA 

of  war  or  attempting  to  break  a  blockade,  should  not 
be  seized  and  appropriated.  In  1823,  the  United  States 
had  already  made  a  proposal  to  Great  Britain,  France, 
and  Russia  ^  for  a  treaty  abrogating  the  rule  that 
enemy  merchantmen  and  enemy  goods  thereon  may 
be  appropriated  ;  but  Russia  alone  accepted  the  pro- 
posal on  the  condition  that  all  other  naval  Powers 
consented.  Again,  in  1856,^  on  the  occasion  of  the 
Declaration  of  Paris,  the  United  States  endeavoured 
to  obtain  the  victory  of  the  principle  that  enemy 
merchantmen  should  not  be  appropriated,  making  it  a 
condition  of  her  accession  to  the  Declaration  of  Paris 
that  this  principle  should  be  recognised.  But  again  the 
attempt  failed,  0T\T:ng  to  the  opposition  of  Great  Britain. 

In  1865  Italy,  by  Article  211  of  her  Marine  Code, 
enacted  that,  in  case  of  war  with  any  other  State, 
enemy  merchantmen  (not  carrjdng  contraband  of  war 
or  breaking  a  blockade)  should  not  be  seized  and  appro- 
priated, provided  reciprocity  was  granted.  At  the 
outbreak  of  war  in  1866,  Prussia  and  Austria  expressly 
declared  that  they  would  not  seize  and  appropriate 
each  other's  merchantmen.  At  the  outbreak  of  the 
Franco-German  War  in  1870,  Germany  declared  French 
merchantmen  exempt  from  capture,  but  changed  her 
attitude  when  France  did  not  act  upon  the  same  hues. 
The  United  States  of  America  made  unsuccessful  at- 
tempts ^  to  secure  immunity  from  capture  for  enemy 
merchantmen  and  goods  at  sea  at  the  First  and  Second 
Hague  Conferences. 

It  cannot  be  denied  that  the  constant  agitation, 
since  the  middle  of  the  eighteenth  century,  for  the 
abohtion  of  the  rule  that  private  enemy  vessels  and 

*  See    Wharton,    iii.    §   342,    pp.        270-287,   and    Moore,    vii.    §    1198, 
260-261,    and    Moore,    vii.    §    1198,        p.  466. 

p.  465.  *  See  Holls,  The  Peace  Conference 

at  the  Hague,  pp.  306-321,  and  Scott, 

*  See    Wharton,    iii.    §    342,    pp.        Conferences,  pp.  699-707. 


ON  SEA  WARFARE  IN  GENERAL         253 

sea-borne  goods  may  be  captured,  might,  during  the 
second  half  of  the  nineteenth  century,  have  met  with 
success  but  for  the  decided  opposition  of  Great  Britain. 
Pubhc  opinion  ^  in  Great  Britain  was  not,  and  is  not, 
prepared  to  consent  to  the  abohtion  of  this  rule ;  and 
there  is  no  doubt  that  its  abohtion  would  involve  a 
certain  amount  of  danger  to  a  country  hke  Great 
Britain,  whose  position  and  power  depend  chiefly  upon 
her  navy.  The  possibihty  of  annihilating  an  enemy's 
commerce  by  annihilating  his  merchant  fleet  is  a  power- 
ful weapon  in  the  hands  of  a  great  naval  Power.  More- 
over, if  enemy  merchantmen  are  not  captured,  they 
can  be  fitted  out  as  cruisers,  or  at  least  be  used  for  the 
transport  of  troops,  munitions,  and  provisions.  Before 
the  World  War  several  maritime  States  made  arrange- 
ments with  their  steamship  companies  to  secure  the 
building  of  their  transatlantic  hners  according  to  plans 
which  made  them  easily  convertible  into  men-of-war, 
and  these  vessels  were  of  great  service  to  the  belhgerents 
in  that  war. 

The  argument  that  it  is  unjust  that  private  enemy 
citizens  should  sufier  through  having  their  property 
seized  has  no  weight  in  face  of  the  probabihty  that  fear 
of  the  annihilation  of  its  merchant  fleet  in  case  of  war 
may  well  deter  a  State  intending  to  go  to  war  from 
doing  so.  It  is  a  matter  for  pohticians,  not  for  jurists, 
to  decide  whether  it  is  necessary  for  Great  Britain  to 
oppose  the  abohtion  of  the  rule  that  sea-borne  private 
enemy  property  may  be  confiscated. 

However  this  may  be,  from  the  end  of  the  nine- 
teenth century  to  the  outbreak  of  the  World  War,  it 
was  not  the  attitude  of  Great  Britain  alone  which 
stood  in  the  way  of  the  abohtion  of  the  rule.  After 
the  growth  of  navies  among  Continental  Powers,  these 

^  The  author  would  doubtless  have        tion  in  the  light  of  experience  gained 
rewritten  the  remainder  of  this  sec-       duiing  the  World  War. 


254 


WARFARE   ON   SEA 


Powers  learned  to  appreciate  the  value  of  the  rule  in 
war,  and  the  outcry  against  the  capture  of  merchant- 
men became  less  loud.  It  may  perhaps  be  said  that, 
even  if  Great  Britain  had  in  or  about  1912  proposed 
the  abohtion  of  the  rule,  it  is  probable  that  a  greater 
number  of  the  maritime  States  would  have  refused  to 
accede.  For  at  the  Second  Hague  Conference,  France, 
Russia,  Japan,  Spain,  Portugal,  Mexico,  Colombia, 
and  Panama,  besides  Great  Britain,  voted  against  its 
abohtion;  and  there  was  noticeable  before  the  World 
War  a  slow,  but  constant,  increase  in  the  number  of 
Continental  publicists  ^  who  opposed  the  abohtion  of 
the  practice  of  capturing  enemy  merchantmen,  to  which 
so  much  objection  was  once  taken. 

§  179.  Be  that  as  it  may,  the  time  did  not  then  seem 


^  See,  for  instance,  Perels,  §  36, 
pp.  195-198  ;  RiJpcke,  Das  Seebeute- 
recht  (1904),  pp.  36-47  ;  Dupuis,  Nos. 
29-32;  Pillet,  p.  119;  Giordana,  La 
Proprieta  privata  nelle  Guerre  mari- 
time, etc.  (1907);  Niemeyer,  Prin- 
zipien  des  Seekriegsrechts  (1909)  ; 
Boidin,  pp.  144-167 ;  Hirschmann, 
Das  Internationale  Prisenrecht  (1912), 
§  2.  On  the  other  hand,  the  Insti- 
tute of  International  Law  has  several 
times  voted  in  favour  of  the  abolition 
of  the  rule  ;  see  Tableau  gin4ral  de 
rinstitutde  Droit  International  (IS9S), 
pp.  190-193,  and  Annuaire,  xxv. 
(1912),  p.  600.  The  literature  con- 
cerning the  confiscation  of  private 
enemy  property  at  sea  is  abundant. 
See,  besides  those  already  quoted  at 
the  commencement  of  §  173,  Upton, 
The  Lav}  of  Nations  affecting  Com- 
merce during  War  (1863)  ;  Cauchy, 
Du  Respect  de  la  Proprietc  privet 
dans  la  Guerre  maritime  (1866) ; 
Vidari,  Del  Rispetto  delta  Proprieta 
privata fra  gli  Stati  in  Guerra  (1867); 
Gessner,  Zur  Reform  des  Kriegs- 
seerechtt  (1875) ;  Klobukowski,  Die 
Seebeute  oder  das  feindliche  Privat- 
eigenthum  zur  See  (1877) ;  Bluntschli, 
Da^  Beuterecht  im  Kriege  und  das 
Seebeuterecht  insbeaondere  (1878); 
Boeck,  De  la  Propriete privee  ennemie 
tout  Pavilion  ennemi  (1882) ;  Dupuis, 


La  Guerre  maritime  et  let  Doctrinet 
anglaises  (1899);  Leroy,  La  Guerre 
maritime  (1900)  ;  Ropcke,  Das  See- 
beuterecht (1904);  Hirst,  Commerce 
and  Property  in  Naval  Warfare :  A 
Letter  of  the  Lord  Chancellor  (1906) ; 
Hammann,  Der  Streit  urn,  das  See- 
beuterecht (1907) ;  Wehberg,  pp.  207- 
256,  and  Das  Beuterecht  im  Land 
und  Seekrieg  (1909) ;  Cohen,  The 
Immunity  of  Enemy's  Property  from 
Capture  at  Sea  (1909)  ;  Macdonell, 
Some  plain  Reasons  for  Immunity 
from  Capture  of  Private  Property 
at  Sea  (1910);  Huttenheim,  Die 
Handdsschiffe  der  Kriegfuhrenden 
(1912) ;  Loreburn,  Capture  at  Sea 
(1913) ;  Schramm,  §  8  ;  Slade  in  the 
Naval  Annual  (1914),  pp.  88-98; 
Westlake,  Papers,  pp.  613-619; 
Quigley  in  A. J.,  xi.  (1917),  pp.  32- 
45 ;  Stier-Somlo,  Die  Freiheil  der 
Meere  und  das  Volkerrecht  (1917)  ; 
Hays  in  A.J.,  xii.  (1918),  pp.  283- 
290 ;  Meurer,  Das  Programm  der 
Meereafreiheit  (1918)  ;  Davison,  The 
Freedom  of  the  Seas  (1918).  See 
also  the  literature  quoted  by  Bonfils, 
No.  1281,  Pradier-Fod^r^,  viii.  Nos, 
3070-3090,  and  Boeck,  Nos.  382-572, 
where  the  arguments  of  the  authors 
against,  and  in  favour  of,  the  present 
practice  are  discussed. 


ATTACK   AND   SEIZURE   OF   ENEMY   VESSELS        255 

very  far  distant  when  the  Powers  would  perforce  come  Codifioa- 
to  an  agreement  on  this,  as  on  other  points  of  sea  war-  Law  of 
fare,  in  a  code  of  regulations  regarding  sea  warfare  ^^^  ^*^' 
analogous  to  the  Hague  Regulations  regarding  warfare 
on  land.  A  beginning  was  made  by  the  United  States 
of  America  by  her  Naval  War  Code  ^  pubhshed  in  1900, 
although  she  withdrew  it  in  1904.  Later,  the  Second 
Hague  Conference  produced  a  number  of  conventions 
deahng  with  some  parts  of  sea  warfare,  namely  :  (1) 
the  vith,  relative  to  the  Status  of  Enemy  Merchant- 
ships  at  the  Outbreak  of  Hostihties  ;  (2)  the  viith, 
relative  to  the  Conversion  of  Merchant-ships  into  War- 
ships ;  (3)  the  viiith,  relative  to  the  Laying  of  Auto- 
matic Submarine  Contact  Mines ;  (4)  the  ixth,  respect- 
ing Bombardments  by  Naval  Forces ;  (5)  the  xith, 
relative  to  certain  Restrictions  on  the  Exercise  of  the 
Right  of  Capture  in  Maritime  War.^ 

Since  then,  however,  the  World  War  has  been  fought, 
and  it  has  become  impossible  to  forecast  the  future  of 
the  movement  for  the  immunity  of  private  enemy 
property  from  capture  at  sea,  or  of  the  laws  of  sea 
warfare  in  general. 

II 

ATTACK   AND   SEIZURE   OF  ENEMY  VESSELS 

Hall,  §§  138,  148— Lawrence,  §  182— Westlake,  ii.  pp.  154-162,  312-316— 
PhiUimore,  iii.  §  347— Twiss,  ii.  §  73— Halleck,  ii.  pp.  105-108— Taylor, 
.  §§  545-546— Moore,  vii.  §§  1175,  1183,  etc.— Walker,  §  50,  p.  147— 
Wharton,  iii.  §  345— Hershey,  Nos.  404,  405,  423-426— Bluntschli,  §§ 
664-670— HefiFter,  §§  137-139— Ullmann,  §  188— Bonfils,  Nos.  1269-1273', 
1350-1354,  1398-1400— Despagnet,  Nos.  654-659— Rivier,  ii.  §  66— Nys, 
iii.    pp.    432-449— Pradier-Fod6r6,   viii.    Nos.    3155-3165,    3176-3178— 

'  See   above,    vol.    i.    §    32,    and  Law,   at  its  meeting   at   Oxford   in 

Stockton  in  the  Proceedings  of  the  1913,  adopted  a  draft  code  of  mari- 

American    Society    of   International  time  warfare  (Manuel  des  Lois  de  la 

Law,   vi.   (1913),   pp.    115-123.     As  Guerre  maritime).     The  author  does 

to  the  Naval  Codes  of  some  other  not  here  mention  the  Declaration  of 

Powers,  see  Gamer,  i.  §§  7-9.  London    because    it    was   primarily 

*  The   Institute   of   International  concerned  with  neutrality. 


256 


WARFARE   ON  SEA 


Import- 
ance of 
Attack 
and 
Seizure 
Enemj' 
Vessels. 


Attack, 
when 
legiti- 
mate. 


Calvo,  iv.  §§  2368-2378— Fiore,  iii.  Nos.  1414-1424,  and  Code,  Nos. 
1665-1671— Fillet,  pp.  121-128— Perels,  §  35— Testa,  pp.  155-157— 
La-BTence,  War,  pp.  48-55.  93-111 — Ortolan,  ii.  pp.  31-34 — Boeck,  Nos. 
190-208— Dupuis,  Nos.  150-158,  and  Guerre,  Nos.  74-112— U.S.  Naval 
War  Code,  Articles  13-16— Bernsten,  §§  7-8— Schramm,  §  8— Wehberg, 
pp.  174-207— Garner,  i.  §§  214-215,  220-222,  ii.  §§  532-537. 

§  180.  ^^^lereas  in  land  warfare  all  sorts  of  violence 
against  enemy  indi\'iduals  are  the  chief  means,  in  sea 
warfare  attack  and  seizure  of  enemy  vessels  are  the 
most  important  means.  For  together  with  enemy 
vessels,  a  belhgerent  takes  possession  of  the  enemy 
individuals  and  enemy  goods  thereon,  so  that  he  can 
appropriate  vessels  and  goods,  as  well  as  detain  those 
enemy  individuals  who  are  hable  to  be  interned  as 
prisoners  of  wa.r.  For  this  reason,  and  compared 
with  attack  and  seizure  of  enemy  vessels,  violence 
against  enemy  persons,  and  the  other  means  of  sea 
warfare,  play  only  a  secondary  part,  although  they 
are  certainly  not  unimportant.  For  a  weak  naval 
Power  can  even  restrict  the  operations  of  its  fleet  to 
mere  coast  defence,  and  thus  totall^^  refrain  from 
directly  attacking  and  seizing  enemy  vessels. 

§  181.  All  enemy  men-of-war  and  other  pubhc  vessels, 
which  are  met  by  a  belhgerent 's  men-of-war  on  the 
high  seas,  or  within  the  territorial  waters  ^  of  either 


^  Whether  enemy  merchantmen 
ma  J'  be  captured  in  rivers  is  a  con- 
troverted question.  See  Wehberg, 
pp.  60-61,  and  Biensfeldt  in  Z.  V.,  x. 
(1917),  pp.  375-381,  and  the  several 
authors  there  quoted.  There  ought 
to  be  no  doubt  that  they  may  be 
captured  in  parts  of  rivers  which  are 
navigable  from  the  sea  by  sea-going 
vessels,  and  that  sea-going  vessels 
may  also  be  captured  in  parts  of 
rivers  not  navigable  from  the  sea, 
if  they  have  been  brought  there  for 
the  purpose  of  saving  them  from 
capture.  The  Institute  of  Interna- 
tional Law  (see  Article  1  of  its  Manual 
de  la  Guerre  maritime  (1913))  had 
answered  the  question  in  the  nega- 
tive ;  but  during  the  World  War  the 


various  Prize  Courts  have  answered 
it  in  the  affirmative.  In  a  judgment 
of  the  Italian  Prize  Court  (see  The 
Gervignano  and  The  Frivli),  con- 
demning in  1917  two  dismantled 
Austrian  vessels  moored  in  a  river 
port,  it  is  mentioned  that  the  German 
Prize  Courts  had  condemned  some 
Belgian  ships  moored  in  the  German 
Rhine  port  of  Duisburg,  and  the 
Russian  vessel  Primula,  captured  in 
the  river  Trave  which  leads  from 
Liibeck  to  Frauenmiinde. 

Different  is  the  question  of  the 
capture  of  enemj'  vessels  on  inland 
lakes  not  connected  with,  and  navi- 
gable from,  the  sea.  In  Be  Craft 
captured  on  Victoria  Nyanza,  (1918) 
3   B.    and    C.    P.    C.    295,    it    was 


ATTACK   AND   SEIZURE   OF   ENEMY  VESSELS         257 

belligerent,^  may  at  once  be  attacked,  and  the  attacked 
vessel  may,  of  com^e,  defend  -  herself  by  a  counter- 
attack. Enemy  merchantmen  ^  may  be  attacked  only 
if  they  refuse  to  submit  to  visit  after  ha\ang  been  duly 
signalled  to  do  so.**  No  duty  exists  for  an  enemy 
merchantman  to  submit  to  visit ;  on  the  contrary,  she 
may  refuse,  and  defend  herself  against  an  attack. 
But  only  a  man-of-war  is  competent  to  attack  either 
men-of-war  or  merchantmen,  in  a  war  between  parties 
to  the  Declaration  of  Paris,  by  which  privateering  is 
prohibited.  Any  merchantman  of  a  beUigerent  attack- 
ing a  pubhc  or  private  vessel  of  the  enemy  would  be 
considered  a  pirate  and  treated  as  such,  and  the  members 
of  the  crew  would  be  Hable  to  be  treated  as  war  criminals  ^ 
to  the  same  extent  as  private  indi\'iduals  committing 
hostihties  in  land  warfare.  However,  if  attacked  by 
an  enemy  vessel,  a  merchantman  is  competent  to 
deUver  a  counter-attack,  and  need  not  discontinue  her 
attack  because  the  vessel  which  opened  hostihties  takes 
to  flight,  but  may  pursue  and  seize  her. 

Moreover,  if  merchantmen  must  expect  to  be  attacked 
without  warning  by  a  lawless  enemy,  they  need  not 
wait  for  attack  before  thev  themselves  resort  to  hos- 


held  that  the  right  of  capture  can  doubted.     But  see  Schramm,  p.  308, 

be   exercised   on  such  large   inland  who  asserts  that  self-defence  is  not 

lakes    as    belong    in    part    to    the  admissible. 

territory   of  each  belligerent,   both  *  The  term  '  enemy  merchantman ' 

ha\nng  armed  vessels  thereon.  is  here  to  be  taken  in  its  wider  sense, 

^  But  not,  of  course,  in  territorial  in  which  it  is  identical  with  '  private 

waters  of  neutral  States;     see   The  vessels.'     There  ought,  therefore,  to 

De  fortwyn,  (1760)  BurreU  175  ;    The  be   no  doubt   that  yachts   may   be 

Bangor,    (1916)  2  B.   and  C.   P.   C.  captured  as  well   as   other   private 

206;'  77i€  Z)«*«Wor/,  (1919)3B.  and  vessels,  although  Wehberg,  p.  177, 

C.  P.  C.  466,  [1920]  A.  C.  1034 ;   The  denies  this.      See  the  German  case 

Fo/erwi,  [1920jP.  81;   The  Pelhcorm,  of  7^6  Pnnjavero  (1916),  cited  above, 

[1920]  P.  347.     But  see  The   Tino*,  §  102a  n. 

above,  §  71  n.,  and  The  Ekaterinoilav  *  This    rule    is,    of    course,    valid 

and  The  Mtikden,  below,  §  320  n.  also  with  regard  to  attacks  by  sub- 

*  See  above,  §  85.     That  a  mer-  marines.     On  the  practice  of  German 

chant    vessel   could    defend    herself  and  Austrian  submarines  during  the 

against  an  attack  of  an  enemy  man-  World  War,  see  below,  §  194a. 

of-war    had    formerly    never    been  *  See  above,  §   85,  and  below,  § 

254. 

VOL,  IL  R 


258  WARFARE   ON   SEA 

tilities.  Thus,  when  in  1915,  during  the  World  War, 
Germany  resorted  to  her  nefarious  submarine  practice, 
and  merchantmen  were  torpedoed  without  warning,  or 
if  they  were  warned,  their  crews  were  endangered  in 
their  lives  by  being  put  in  lifeboats  on  the  high  seas, 
it  was  perfectly  legitimate  for  merchantmen  of  the 
Alhes  to  attempt  to  ram  German  submarines,  even  if 
signalled  to  stop  and  submit  to  visitation.  The  con- 
viction and  execution  by  the  Germans  in  July  1916  of 
Captain  Fryatt,^  the  commander  of  the  Brussels,  for 
having  attempted  in  March  1915  to  ram  the  German 
submarine  U  33,  was  nothing  else  than  a  judicial 
murder. 

An  attack  upon  an  enemy  vessel  on  the  sea  by  forces 
on  the  shore,  for  instance,  by  coast  batteries,  is  only 
permissible  if  the  vessel  is  an  enemy  man-of-war. 
Enemy  merchantmen  may  not  be  attacked  in  this  way  ; 
for  they  may  only  be  attacked  by  men-of-war  after 
having  been  signalled  in  vain  to  submit  to  visit. 
Attack,  §  182.  One  mode  of  attack  which  was  in  use  in  the 
effected  ^imc  of  saihug  ships,  namely,  boarding  and  fighting 
the  crew,  which  can  be  described  as  analogous  to  assault 
in  land  warfare,  is  no  longer  common ;  but  if  an  instance 
occurs,  it  is  perfectly  lawful.  Attack  is  nowadays  gener- 
ally effected  by  cannonade,  torpedoes,^  and,  if  oppor- 
tunity arises,  by  ramming ;  and  except  in  so  far  as 
the  Hague  Declaration  which  prohibits  such  attacks 
by  aircraft  is  binding,^  nothing  forbids  an  attack  on 
enemy  vessels  by  launching  projectiles  and  explosives 
from  air-vessels.  In  case  the  attacked  vessel  not  only 
takes  to  flight,  but  defends  herself  by  a  counter-attack, 
all  modes  of  attack  are  lawful  against  her,  just  as  she 

^  See  Scott  in  A.  J.,  x.  (1916),  pp.  viii.  prohibits  the  use  of  torpedoes 

865-877.     The  attempt  of  Jerusalem  which   do   not  become    harmless   if 

in  Z.V.,  xi.   (1918),  pp.  563-585,  to  they  miss  their  mark, 
justify  the  conviction  and  execution 

of  Captain  Fryatt  is  futile.  ^  See  above,  §  114,  and  below,  § 

*  Article  1  of  Hague  Convention  214a. 


I 


ATTACK   AND   SEIZURE   OF   ENEMY  VESSELS         259 

herself  is  justified  in  applying  all  modes  of  attack  by 
way  of  defence.^ 

§  182a.  A  mode  of  attack  which  requires  special  Sub- 
attention-  is  by  means  of  floating  mechanical,  in  con- J^^^i^^^ 
tradistinction  to  so-called  electro-contact,  mines.  The  Mines. 
latter  need  not  specially  be  discussed,  because  they 
are  connected  with  a  battery  on  land,  can  naturally 
only  be  laid  within  territorial  waters,  and  present  no 
danger  to  neutral  shipping  except  on  the  spot  where 
they  are  laid.  But  floating  mechanical  mines  can  be 
dropped  as  well  in  the  open  sea  as  in  territorial  waters  ; 
they  can,  moreover,  drift  away  to  any  distance  from 
the  spot  where  they  were  dropped,  and  thus  become 
a  great  danger  to  navigation  in  general.  Mechanical 
mines  were  extensively  used  by  both  parties  in  the 
Russo-Japanese  War,  during  the  blockade  of  Port 
Arthur  in  1904,  and  the  question  of  their  admissi- 
bihty  was  raised  in  the  press  of  all  neutral  countries, 
the  danger  to  neutral  shipping  being  obvious.  The 
Second  Hague  Conference  took  the  matter  up,  and, 
in  spite  of  the  opposing  views  of  the  Powers,  produced 
Convention  viii.  relative  to  the  Lapng  of  Automatic 
Submarine  Contact  I\Iines.  This  convention  comprises 
thirteen  articles  and  was  signed,  with  or  without  reserva- 
tion, by  the  majority  of  the  Powers  represented  at  the 
conference.  Twenty  States  ratified  it,  but  some  made 
reservations.^  This  convention  prohibited  belhgerents  * 
from  laying  unancliored  automatic  contact  mines,  unless 
they  were  so  constructed  as  to  become  harmless  one  hour 

^  But  air-vessels  must  not  attack  pp.  328-345  ;   Boidin,  pp.   216-235  ; 

merchantmen    without    summoning  Dupuis,  G'werre,  Nos.  331-358;  Scott, 

them  to  surrender,  and  if  they  sink  Conferences,  pp.  576-587  ;  Martitz  in 

the  vessel,  they  must  save  the  crew.  the    Report   of  the   23rrf   Conference 

See  below,  §  194.  (1906)  of  the  International  Law  As- 

*  See  Lawrence,  IFar,  pp.  93-111  ;  sociation,    pp.    47-74;     Stockton    in 

Wetzstein,     Die    Seeminenfrage    im  A.J.,  ii.  (1908),  pp.  276-284 ;  Weh- 

Volkerrecht    (1909)  ;     Rocholl,     Die  berg,  §  5. 

Frage  der  Minen  im  Seekrieg  (1910)  ;  *  See  above,  vol.  i.  §  568a. 

Barclay,  Problems,  pp.   59  and  158  ;  *  As  regards  neutrals,  see  below, 

L^monon,    pp.     472-502 ;     Higgins,  §  363a. 


260  WARFARE   ON   SEA 

1 

at  most  after  those  who  laid  them  had  lost  control  over 
them,  and  from  laying  anchored  automatic  contact  mines 
which  did  not  become  harmless  as  soon  as  they  had 
broken  loose  from  their  moorings.  It  also  prohibited 
them  from  laying  automatic  contact  mines  off  the 
coasts  and  ports  of  the  enemy,  with  the  sole  object  of 
intercepting  commercial  navigation.^ 

When  anchored  automatic  contact  mines  were  em- 
ployed, every  possible  precaution  w^as  to  be  taken  for 
the  security  of  peaceful  navigation.  The  beUigerents 
were  to  provide,  as  far  as  possible,  for  these  mines 
becoming  harmless  after  a  hmited  time,  and,  where 
they  ceased  to  be  under  observation,  to  notify  the 
danger  zones  as  soon  as  mihtary  exigencies  permitted 
by  notice  to  mariners,  which  was  also  to  be  com- 
municated to  the  Governments  through  the  diplomatic 
channel. 

At  the  close  of  the  war  each  Power  was  to  remove 
the  mines  laid  bv  it. 

There  was  no  doubt,  even  when  the  convention  was 
drawn  up,  that  its  stipulations  were  totally  inadequate 
to  secure  the  safety  of  neutral  shipping,  and  it  was  for 
this  reason  that  the  British  plenipotentiaries  signed  it 
with  a  reservation  that  the  mere  fact  that  it  did  not 
prohibit  a  particular  act  or  proceeding  must  not  be 
held  to  debar  Great  Britain  from  contesting  its  legiti- 
macy. The  Institute  of  International  Law  studied 
the  matter  at  its  meetings  at  Paris  in  1910  and  at 
Madrid  in  1911,  and  produced  a  '  Reglementation  ^ 
international  de  TUsage  des  Mines  sous-marines  et 
Torpilles,'  and  at  Oxford  in  1914  it  adopted  five 
articles  dealing  with  the  problem  in  its  Manuel  de 
Guerre  maritime. 


*  France    and     Germany    signed  *  See   Annuaire,   xxiv.   (1911),  p, 

with  reservations  against  this  pro-       301. 
viBion. 


ATTACK    AND   SEIZURE    OF   ENEMY   VESSELS        261 

The  World  War  proved  the  Hague  Convention  to  be 
even  more  unsatisfactory  than  had  been  foreseen.  On 
1  he  first  day  of  the  war  a  German  vessel  was  sunk  while 
laying  mines  in  the  North  Sea,  and  on  August  23,  1914, 
the  British  Admiralty  announced  that  '  the  Germans 
are  continuing  their  practice  of  scattering  mines  indis- 
criminately upon  the  ordinary  trade  routes.  These 
mines  do  not  become  harmless  after  a  certain  number 
of  hours  ;  they  are  not  laid  in  coimection  with  any 
definite  military  scheme  .  .  .  but  appear  to  be  scattered 
on  the  chance  of  touching  individual  British  war  or 
merchant  vessels.'  Great  Britain  did  not  pursue  this 
pohcy,  but  on  October  2,  1914,  announced  a  system  of 
mine-fields  in  certain  notified  areas.  As  the  war  pro- 
ceeded, Germany  planted  mines  on  other  trade  routes. 
Great  Britain  estabhshed  other  notified  mine-fields,  and 
Holland  protested  against  both  policies.^ 

§  183.  As  soon  as  an  attacked  or  counter-attacked  Duty  of 
vessel  hauls  down  her  flag  and,  therefore,  signals  that  Q\[^"fgj.. 
she  is  ready  to  surrender,  she  must  be  given  quarter 
and  seized  without  further  firing.  To  continue  an 
attack  although  she  is  ready  to  surrender,  and  to  sink 
her  and  her  crew,  would  constitute  a  violation  of  custo- 
mary International  Law,  and  would  only,  as  an  excep- 
tion, be  admissible  in  case  of  imperative  necessity  or 
of  reprisals. 

§  184.  Seizure  is  efiected  by  securing  possession  of  Seizure. 
the  vessel  through  the  captor  sending  an  officer  and 
some  of  his  own  crew  on  board.  But  if,  for  any  reason, 
this  is  impracticable,  the  captor  orders  the  captured 
vessel  to  lower  her  flag  and  to  steer  according  to  his 
orders.  Seizure  of  the  vessel  includes  seizure  of  all 
the  goods  thereon,  although  neutral  merchandise  will 
be  restored  by  the  Prize  Court  to  its  owner,  as  will 

*  See  details  in  Garner,  i.  §§  214-215,  220-222. 


262  WARFARE   ON   SEA 

usually  also  personal  effects  ^  of  the  captain,  crew,  and 
enemy  passengers. 

There  is  no  doubt  that  enemy  merchantmen  lying  in 
an  enemy  port  may  there  be  seized,  although  the  port 
itself  is  not  occupied.^  But  if  a  town  is  occupied  after 
capitulation,  and  merchantmen  owned  by  enemy  subjects 
resident  in  that  town  are  found  in  its  port,  they  cannot 
be  seized  according  to  British  practice,^  although  they 
may  by  American  *  practice. 
Effect  of  §  185.  The  effect  of  seizure  differs  in  the  case  of 
Seizure     private  enemy  vessels  and  pubhc  enemy  vessels. 

Seizure  of  'private  enemy  vessels  may  be  described 
as  parallel  to  occupation  of  enemy  territory  in  land 
warfare.  Since  the  vessel,  and  the  individuals  and 
goods  thereon,  are  actually  placed  under  the  captor's 
authority,  her  officers  and  crew,  and  any  private  indi- 
viduals on  board,  are  for  the  time  being  submitted  to 
the  discipHne  of  the  captor,  just  as  private  individuals 
on  occupied  enemy  territory  are  submitted  to  the 
authority  of  the  occupant.^  Seizure  of  private  enemy 
vessels  does  not,  however,  vest  the  property  finally  in 
the  hands  of  the  belhgerent  ^  whose  forces  effected  the 
capture.  The  prize  has  to  be  brought  before  a  Prize 
Court,  which,  by  confirming  the  capture  through 
adjudication  of  the  prize,  makes  the  appropriation  by 
the  capturing  belhgerent  final.''' 

^  See     Westlake,     pp.      144-155,  ^  Concerning  the  ultimate  fate  of 

especially    with   regard   to    the    so-  the  crew,  see  above  §  85. 

called' adventures '(paco<i/;6.o),  small  «  j^    -^   asserted   that  a  captured 

parcels     of     merchandise    which    a  ^             merchantman   may   at   once 

captain   is  allowed  to   carry   on  his  ^^  converted  by  the  captor   into  a 

^"^9^  ^'i^'^^^  ^  /loi^x,  TV    1    1-r.  man-of-war,    but   the  cases   of    The 

*  The Fwtuna,  (1814)  1  J)od.  4o0  ;  n.„j^„  na\-\\  ^^a  ti..  n.^^;^^„ 
m-L  n  71  /lo-A  c  •  1  --T  Leylon,  (isli)  and  1  he  Ueorqiana, 
ThePolka   (1804   hpinksoT  ^^j^)  ^  j^^^   105  and  397,  which  are 

C   R  b   S88  'l^'^^^'^  ^^  ^^^'''"'"  °^  '""^  ^  P"*°*^°^' 

S"  TT^  '         '       TT  ■.    J    c<.   ,  1  are  not  decisive.     See  Higgins,  War 

*  Herrera  v.  United  estates  and  „„,  ,r„  r,  •  „,„  njf„^  /inio\  „„ 
n-  TT  ■,  J  c?,  ,  /inio\  Doo  ^^(^  ^"«  Frtvate  Utttzen  (1912),  pp. 
Diaz  V.    United   States,    (1912)  222  I3g.i42 

U.S.  558,    574.     See  Kingsbury   in 

A.J.,  vi.    (1912),  pp.    650-658,   and  '  See  below,  §   192;   and   Smith, 

below,  §  227  n.  The  Destruction,  of  Merchant  Ships 


ATTACK   AND   SEIZURE   OF   ENEMY   VESSELS        263 

On  the  other  hand,  the  efiect  of  seizure  of  public 
enemy  vessels  is  their  immediate  and  final  appropria- 
tion. They  may  be  either  taken  into  a  port,  or  at  once 
destroyed.  All  individuals  on  board  become  prisoners 
of  war,  although,  if  perchance  there  should  be  on  board 
a  private  enemy  individual  of  no  importance  or  value 
to  the  enemy,  he  would  probably  not  be  kept  for  long 
in  captivity,  but  hberated  in  due  time. 

As  regards  goods  on  captured  pubhc  enemy  vessels, 
there  is  no  doubt  that  the  effect  of  seizure  is  the  imme- 
diate appropriation  of  such  goods  on  the  vessels  con- 
cerned as  are  enemy  property,  and  these  goods  may 
therefore  be  destroyed  at  once,  if  desirable.  Should, 
however,  neutral  goods  be  on  board  a  captured  enemy 
pubhc  vessel,  it  is  a  moot  point  whether  or  no  they 
share  the  fate  of  the  captured  ship.  According  to 
British  practice  they  do,  but  according  to  American 
practice  they  do  not.^ 

§  186.  Enemy  vessels  engaged  in  scientific  discovery  immunity 
and   exploration  were,  according  to   a  general  inter-  ph^rged^^ 
national  usage  in  existence  before  the  Second  Hague  ^th 
Conference  of  1907,  granted  immunity  from  attack  and  sdentmc! 
seizure   in  so   far,   and    so   long,   as   they  themselves  thropiJ^° 
abstained  from  hostilities.     The  usage  gi'ew  up  in  the  Mission, 
eighteenth    century.     In    1766,    the    French    explorer 
Bougainville,  who  started  from  St.  Malo  with  the  vessels 
La  Boudeuse  and  L'Etoile  on  a  voyage  round  the  world, 
was  furnished  by  the  British  Government  with  safe- 
conducts.     In   1776,    Captain   Cook's   vessels   Resolu- 
tion  and   Discovery,    saihng   from   Plymouth    for   the 
purpose  of  exploring  the  Pacific  Ocean,  were  declared 
exempt  from  attack  and  seizure  on  the  part  of  French 
cruisers  by  the  French  Government.    Again,  the  French 

Wider  International  Law  (1917),  pp.        Fanny,  (1814)  1  Dod.  443,  and,  on 

21-27.  the   other,    The   Xereide,    (1815)    9 

^  See,    on    the     one    hand,     The       Cranch  388.     See  also  below,  §  424  n. 


264  WARFARE   ON  SEA 

Count  Laperouse,  who  started  on  a  voyage  of  explora- 
tion in  1785  with  the  vessels  Astrolabe  and  Boussole, 
was  secured  immunity  from  attack  and  seizure.  During 
the  nineteenth  century  this  usage  became  quite  general, 
and  had  almost  ripened  into  a  custom ;  examples  are  the 
Austrian  cruiser  Novara  (1859)  and  the  Swedish  cruiser 
Vega  (1878).  No  immunity,  however,  was  granted  to 
vessels  charged  with  rehgious  or  philanthropic  missions. 
A  remarkable  case  occurred  during  the  Franco-German 
War.  In  June  1871,  the  Palme,  a  vessel  belonging  to 
the  Missionary  Society  of  Basle,  was  captured  by  a 
French  man-of-war,  and  condemned  by  the  Prize 
Court  of  Bordeaux.  The  owners  appealed,  and  the 
French  Conseil  d'^^tat  set  the  vessel  free,  not  because 
the  capture  was  not  justified,  but  because  equity 
demanded  that  the  fact  that  Swiss  subjects  owning 
sea -going  vessels  were  obhged  to  sail  them  under 
the  flag  of  another  State,  should  be  taken  into 
consideration.^ 

The  Second  Hague  Conference  embodied  the  previous 
usage  concerning  immunity  of  vessels  of  discovery 
and  exploration  in  a  written  rule,  and  by  Article  4  of 
Convention  xi.  extended  it  to  vessels  with  a  rehgious, 
scientific,  or  philanthropic  mission. 

The  question,  what  is  a  '  philanthropic  mission,'  arose 
during  the  World  War,  when  a  German  vessel,  the 
Paklat,^  requisitioned  by  the  German  authorities  at 
Tsing-tau  at  the  outbreak  of  war  with  Japan  to  carry 
women  and  children  to  Tientsin,  was  captured  on  her 
way  there  by  a  cruiser,  and  condemned  by  the  Hong- 

^  See    Rivier,     ii.     pp.     343-344  ;  ing    Belgian    refugees    to    England 

Dupuis,  No.   158;  Boeck,  No.   199;  soon  after  the  outbreak  of  the  World 

and  above,  vol.  i.  §  258.  War.  The  position  of  the  many- 
ships     chartered     by     the    Belgian 

*  (1915)    1  B.  and  C.   P.    C.   515.  Relief  Commis.sion  to  carry  supplies 

See  also  Garner,  i.  §  319,  who  dis-  for  the  inhabitants  of  the  occupied 

cusses    the     case     of     The    Amiral  territory    in    Belgium    which   were 

Ganteaume,  a  French  steamer  sunk  sunk  by  German  submarines  is  also 

by  a  German  submarine  while  carry-  discussed  by  Garner,  i.  §  328-330. 


ATTACK   AND   SEIZURE   OF   ENEMY   VESSELS  265 

Kong  Prize  Court  as  not  being  engaged  on  a  pliilan- 
tliropic  mission. 

The  immunity  is  the  same,  whether  the  vessel  con- 
cerned is  a  private  or  a  pubhc  vessel.^ 

§  187.  Coast    fishing-boats,    in    contradistinction    to  immunity 
boats  engaged  in  deep-sea  fisheries,  were,  according  to  ing  Boats 
a  general,  but  not  universal,  custom  in  existence  during  ^g^tg"*^^ 
the  nineteenth  century,  granted  immunity  from  attack  employed 
and  seizure,  so  long,  and  in  so  far,  as  they  were  un-  Trade. 
armed,  and  were  imiocently  employed  in  catching  and 
bringing  in  fish.^    As  early  as  the  sixteenth  century, 
treaties  were  concluded  between  single  States  stipu- 
lating such  immunity  for  their  fishing  boats  in  the  time 
of  war.     But  throughout  the  seventeenth  and  eighteenth 
centuries  there  were  instances  of  a  contrary  practice, 
and    Lord    Stowell    refused  ^    to    recognise    any    such 
exemption  in  strict  law,  although  he  recognised  a  rule 
of  comity  to  that  extent.     Great  Britain  had  always 
taken  the  standpoint  that  any  immimity  granted  by 
her  to  fishing  boats  was  a  relaxation  ^  of  strict  right 
in   the   interest   of   humanity,    but   revocable   at   any 
moment,  and  that  her  cruisers  were  justified  in  seizing 
enemy  fishing  boats  unless  prevented   by  special   in- 
structions from  the  Admiralty.^    But  at  the  Second 
Hague  Conference  she  altered  her  attitude,  and  agreed 
to  the  immunity,  not  only  of  fishing  vessels,  but  also 
of  small  boats  employed  in  local  trade.     Article  3  of 
Convention   xi.    enacted   that   vessels   employed   exclu- 
sively in  coast  fisheries,  mid  small  boats  employed  in  local 

^  SeeU.S.  Naval  War  Code,  Article  to  which  a  safe-conduct  was  given, 

13.     The  matter  is  discussed  at  some  see  Lawrence,  §  182. 
length  by  Kleen,  ii.  §  210,  pp.  503-  *  The    Paquette    ffabana,    (1899) 

505.      Concerning    the   case   of   the  175  U.S.  677.     See  U.S.  Naval  War 

English  explorer  Flinders,  who  sailed  Code,    Article    14;    Japanese   Prize 

with  the  Investigator  from  England,  Law,  Article  35  (1). 
but  exchanged  her  for  the  Cumber-  '   The  Young  Jacob  and  Johanna, 

land,  which  was  seized  in   1803  by  (1798)  1  C.  Rob.  20. 
the     French     at     Port     Louis,     in  *  See  Hall.  §  148. 

Mauritius,  as  she  was  not  the  vessel  ^  See  Holland,  P7-ize  Law,  §  36. 


266  WARFARE   ON   SEA 

trade, ^  are,   together  with  apphances,  rigging,   tackle,^ 
and  cargo,  exempt  from  captm'e. 

None  the  less,  the  immunity  of  coast  fishing  boats 
from  captm-e  was  vakieless  during  the  World  War,^ 
because  Germany  sank  British  fishing  boats,  and  all 
the  belhgerents  captured  and  interned  members  of 
the  crews  of  military  age. 

It  must  be  specially  observed  that  boats  engaged 

in  deep-sea  fisheries  ^  and  large  boats  engaged  in  local 

trade  ^  do  not  enjoy  the  privilege  of  immunity  from 

capture.     Moreover,    coast   fishing  vessels,   and   small 

boats  employed  in  local  trade,  lose  it  by  taking  part 

in  hostihties,  and  Article  3  of  Convention  xi.  expressly 

stipulates  that  belligerents  must  not  take  advantage 

of  the  harmless  character  of  boats  engaged  in  coast 

fisheries  and  in  local  trade,  in  order  to  use  them  for 

mihtary    purposes    while    preserving     their    peaceful 

appearance. 

Immunity     §  188.  Several  times,  at  the  outbreak  of  war,  during 

chantmen  the  nineteenth  century,   belhgerents  decreed  that  an 

o  tb^  k  ®^®^y  merchantman  on  its  voyage  to   one  of  their 

of  War     ports  at  the  outbreak  of  war,  should  not  be  seized  at 

Voyage'^to  sea  during  its  voyage  to  and  from  that  port.     Thus, 

*°^Jf.o™  at  the  outbreak  of  the  Crimean  War,   Great  Britain 

a  Belli- 
gerent's    and  France  decreed  such  immunity  for  Eussian  vessels, 

Germany  did  the  same  with  regard  to  French  vessels 

in  ISTO,"*  Russia  with  regard  to  Turkish  vessels  in  1877, 

the  United  States  with  regard  to  Spanish  vessels  in 

1898,  and  Russia  and  Japan  with  regard  to  each  other's 

^  On   the    meaning   of    the   term  '  coast  fisheries,' which  is  not  defined 

'  smallVjoats  employed  in  local  trade,'  in  the  Hague  Convention,  certainly 

see   H.M.    Procurator  in   Egypt  v.  must  not  be  construed  to  mean  only 

Deutsches  Kohhn  Depot  Gesellschaft,  fisheries  within   the  maritime  belt, 

2   B.  and  C.    P.  C.  439  ;    3  B.  and  for   fishermen  engaged   in   so-called 

C.  P.  C.  264.     See  also  The  Maria,  coast  fisheries  frequently  fish  outside 

(1915)  1  B.  and  C.  P.  C.  259.     It  is  territorial    waters.      The    size    and 

a  question  of  fact  in  each  case.  character  of  the  boat  must  determine 

*  See  Garner,  i.  §  232.  whether  it  is   engaged  in   coast  or 

'  The    Berlin,    (1914)    1    B.    and  deep-sea  fisheries. 
C.   P.   C.   29.     However,    the   term  *  See,  however,  above,  §  178. 


ATTACK    AND   SEIZURE   OF   ENEMY   VESSELS  267 

vessels  in  1904.  But  there  was  no  rule  of  International 
Law  which  compelled  a  belligerent  to  grant  such  days 
of  grace,  and  it  appeared  possible  when  the  last  edition 
of  this  book  was  pubhshed,  that  they  would  not  be 
granted  in  future  wars,  for  the  reasons  which  have 
already  been  stated  in  considering  the  pro\'isions  of 
Hague  Convention  vi.  How  far  that  surmise  was 
correct,  so  far  as  the  World  War  was  concerned,  has 
already  been  pointed  out.^ 

§  189.  Instances  have  occurred  when  enemy  vessels  vessels  in 
which  were  forced  by  stress  of  weather  to  seek  refuge  ^'^"®®^- 
in  a  belHgerent's  harbour  were  granted  exemption  from 
seizure.^  Thus,  when  in  1746,  during  war  with  Spain, 
the  Elisabeth,  a  British  man-of-war,  w^as  forced  to  take 
refuge  in  the  port  of  Havana,  she  was  not  seized,  but 
was  offered  facilities  for  repairing  the  damage,  and 
fiu'iiished  with  a  safe-conduct  as  far  as  the  Bermudas. 
Thus,  fm1:her,  when  in  1799,  during  war  with  France, 
the  Diana,  a  Prussian  merchantman,  was  forced  to 
take  refuge  in  the  port  of  Dunkirk  and  there  seized, 
she  was  restored  by  the  French  Prize  Court.  But 
these,  and  other  cases,  have  not  created  any  rule  of 
International  Law  whereby  immunity  from  attack  and 
seizure  is  granted  to  vessels  in  distress,  and  no  such 
rule  is  hkely  to  grow  up,  especially  in  the  case  of  men- 
of-war  and  merchantmen  easily  convertible  into  cruisers. 

§  190.  According  to   the   Hague   Convention  which  immunity 
adapted  the  principles  of  the  Geneva  Convention  to  pjtai  and 
warfare  on  sea,  hospital  ships  are  inviolable,  and  there-  g^f  J^ 
fore  may  be  neither  attacked  nor  seized.^    Concern- 
ing the  immunity  of  cartel  ships,  see  below.* 

§  191.  No  general  rule  of  International  Law  exists 
granting  vcnemy  mail-boats  immunity  from  attack  and 

1  See  above,  §  102a.  *  See  below,  §§  204-209. 

*  See   Ortolan,    ii.     pp.    2S6-291  ; 
Kleen,  ii.  §  210,  pp.  492-494.  *  §  225. 


268  WARFARE   ON   SEA 

Immunity  seizure,  and  they  were  not  granted  any  during  the 
Boatrand  World  War ;  but  the  several  States  have  frequently 
Ba^s*^^  stipulated  such  immunity  in  the  case  of  war  by  special 
treaties.^  Thus,  for  instance,  Great  Britain  and  France 
by  Article  9  of  the  Postal  Convention  of  August  30, 
1890,  and  Great  Britain  and  Holland  by  Article  7  of 
the  Postal  Convention  of  October  14,  1843,  stipulated 
that  all  mail-boats  navigating  between  the  countries 
of  the  parties  should  continue  to  do  so  in  time  of  war 
without  impediment  or  molestation,  until  special  notice 
was  given  by  either  party  that  the  service  was  to  be 
discontinued. 

Whereas  there  is  no  general  rule  granting  immunity 
from  capture  to  enemy  mail-boats,  enemy  mail-hags 
were,  according  to  Article  1  of  Hague  Convention  xi.,^ 
to  enjoy  immunity,  for  it  is  there  enacted  that  the 
postal  correspondence  of  neutrals  or  belhgerents, 
whether  official  or  private  in  character,  which  may  be 
found  on  board  a  neutral  ^  or  enemy  ship  at  sea,  is 
inviolable,  and  that,  in  case  the  ship  is  detained,  the 
correspondence  is  to  be  forwarded  by  the  captor  with 
the  least  possible  delay.  There  is  only  one  exception 
to  this  rule  ;  correspondence  destined  to,  or  proceed- 
ing from,  a  blockaded  port  does  not  enjoy  immunity. 

During  the  World  War,  the  Central  Powers  used  the 
mails  to  disseminate  propaganda  Hterature,  to  forward 
contraband,  to  send  securities  abroad  to  sustain  their 
credit,  to  transmit  information,  and  to  organise  in- 
cendiarism and  sabotage  in  factories  in  neutral  countries.* 
These  devices  assumed  such  proportions  that  the 
Alhes  proceeded  to  open  and  examine  mail-bags  destined 
for  certain  countries  and  found  on  neutral  steamers 

^  See  Kleen,  ii.  §210,  pp.  505-507.  not  all  the  belligerents  were  parties 

*  See  Hershey  in  A.J.,  x.  (1910),  to  it. 

pp.    580-584,    who  correctly    states  '  See  below,  §§  319,  411. 

that  this  convention  was  not  bind-  ■•  See  details  in  Garner,  ii.  §§  532- 

ing  during  the  World  War,  because  534. 


APPROPRIATION,    ETC.,   OF   ENEMY   MERCHANTMEN      269 

entering  British  tenitorial  waters  or  ports.  This  action 
provoked  protests  from  neutral  States ;  ^  but  the 
immunity  from  capture  at  sea  granted  to  mail-bags 
does  not  include  immunity  from  being  censored  when 
found  on  vessels  which  enter  the  territorial  waters  and 
harbours  of  a  belhgerent.^ 

It  must  also  be  specially  observed  that  postal 
correspondence,^  and  not  parcels  sent  by  parcel  post,^ 
are  immune  from  capture  according  to  the  Hague 
Convention. 

Ill 

APPROPRIATION   AND   DESTRUCTION   OF   ENEMY 
MERCHANTMEN 

Hall,  §§  149-152,  171,  269— Lawrence,  §§  183-191— Westlake,  ii.  pp.  309-312 
— Phillimore,  iii.  §§  345-381— Twiss,  ii.  §§  72-97— Halleck,  ii.  pp.  362- 
431,  510-526— Taylor,  §§  552-567— Wharton,  iii.  §  345— VVheaton,  §§ 
355-394— Hershey,  Nos.  428-432— Moore,  vii.  §§  1206-1214— Bluntschli, 
§§  672-673— Heffter,  §§  137-138— Geffcken  in  Holtzendorff,  iv.  pp.  588- 
596— Ullraann,  §  189— Bonfils,  Nos.  1396-1440^— Despagnet,  Nos.  670- 
682— Pradier-Fod6r6,  viii.  Nos.  3179-3207— Rivier,  ii.  §  66— Nys,  iii. 
pp.  695-710— Calvo,  iv.  §§  2294-2366,  v.  §§  3004-3034— Fiore,  iii.  Nos. 
1426-1443,  and  Code,  Nos.  1715-1728— Martens,  ii.  §§  125-126— Pillet, 
pp.  342-353— Perels,  §§  36,  55-58— Testa,  pp.  147-160— Valin,  Traitd 
des  Prises,  2  vols.  (1758-60),  and  Commentaire  sur  I'Ordonnance  de 
1681,  2  vols.  (1766) — Pistoye  et  Duverdy,  Traitd  des  Prises  maritimes, 
2  vols.  (1854-1859) — Upton,  The  Law  of  Nations  affecting  Commerce 
during  War  (1863)— Boeck,  Nos.  156-209,  329-380— Dupuis,  Nos.  96- 
149,  282-301— Bernsten,  §  8— Roseoe,  The  Groioth  of  English  Law 
(1911),  pp.  92-140— Schramm,  §§  2,  13-15— Marsden,  Early  Prize  Juris- 
diction and  Prize  Law  in  England  in  the  English  Historical  Review, 
xxiv.  (1909),  p.  675  ;  xxv.  (1910),  p.  243  ;  xxvi.  (1911),  p.  34.  See  also 
the  literature  quoted  by  Bonfils  at  the  commencement  of  No.  1396. 

^  For  the  diplomatic  controversies  ^  If  letters  contain,  not  only  cor- 

between     Great     Britain     and    the  respondence,  but   also   goods,   or   if 

United  States  of  America  regarding  goods  are  sent  by  letter  post,  such 

interference    with  mails,  see    Pari.  goods,  if   contraband,  may  be   con- 

Papers,  Cd.  8173,  8223,  8261,  8294,  fiscated.     As  to  securities,  see    The 

8438,  or  .4./.,  X.  (1916),  Special  Sup-  Frederick    VIII.,    (1916)   2   B.    and 

plement,  pp.  404-426  ;  for  those  with  C.  P.  C.  395  ;   The  Noordam,  (1919)  3 

Sweden,  see  Pari.  Papers,  Cd.  8322  ;  B.  and  C.  P.  C.  488  and  (on  appeal)  in 

for  those  with  Holland,  see  R.G.,  [1920]  A.  C.  904  ;  and  Cd.  8261,  p.  4. 
xxiv.  (1917),  Documents,  p.  79.     See  *  As  regards  parcel  post,  see  The 

also  Hall,  pp.  743-746.  Simla,  (1915)  1  B.  and  C.  P.  C.  281, 

-  See  Cd.  8438,  p.  4.  and  also  Cd.  8173. 


270  WARFARE   ON   SEA 

Prize  §  192.  It  has  already  been  stated  above  ^  that  the 

capture  of  a  private  enemy  vessel  has  to  be  confirmed 
by  a  Prize  Court,  and  that  it  is  only  through  its  adjudi- 
cation that  the  vessel  becomes  finally  appropriated.    The 
origin  ^  of  Prize  Courts  is  to  be  traced  back  to  the  end  of 
the  Middle  Ages.     During  the  Middle  Ages,  after  the 
Roman  Empire  had  broken  up,  a  state  of  lawlessness 
estabhshed  itself  on  the  high  seas.     Piratical  vessels  of 
the  Danes  covered  the  North  Sea  and  the  Baltic,  and 
navigation  of  the  Mediterranean  Sea  was  threatened 
by  Greek  and  Saracen  pirates.     Merchantmen,  there- 
fore, associated  themselves  for  mutual  protection,  and 
sailed  as  a  merchant  fleet  under  a  specially  elected  chief, 
the   so-called   Admiral.     They   also   occasionally   sent 
out  a  fleet  of  armed  vessels  for  the  purpose  of  sweeping 
pirates  from  certain  parts  of  the  high  seas.     Piratical 
vessels  and  goods  which  were  captured  were  divided 
among  the  captors  according  to  a  decision  of  their 
Admiral.      During  the   thirteenth   century  the   mari- 
time States  of  Europe  themselves  endeavoured  to  keep 
order  on  the  open  sea.     By  and  by,  armed  vessels  were 
obhged  to  be  furnished  with  letters  patent,  or  letters 
of  marque,  from  the  sovereign  of  a  maritime  State,  and 
their  captures  submitted  to  the  of&cial  control  of  such 
State   as   had  furnished  them  with  their  letters.     A 
board,  called  the  Admiralty,  was  instituted  by  mari- 
time States,  and  officers  of  that  Board  of  Admiralty 
exercised   control  over  the   armed  vessels   and  their 
captures,  inquiring  in  each  case  ^  into  the  legitimation 

1  §  185.  Society  of  Comparative  Legislation, 

*  I  follow  the  excellent  summary  New   Ser.    xv.    (1915),    pp.    90-94. 

of  the  facts  given   by  Twiss,  ii.  §§  See  also  Senior  in  the  Law  Quarterly 

74-75,  but  see  also  Marsden,  Docu-  Review,  xxxv.  (1919),  pp.  73-83. 

merits  relating  to  Law  and  Custom  of  ^  The  first  case  that  is  mentioned 

the  Sea   (i.    1915,  ii.    1916),  and  the  as  having  led  to  judicial  proceedings 

same    author   in    the    English    Hia-  before  the  Admiral  in  England  dates 

torical  Review,  xxiv.  (1909),  p.  675,  from    1357;    see    Marsden    in    the 

XXV.    (1910),    p.    243,    xxvi.    (1911),  English     Historical     Review,     xxiv. 

p.    34,   and   in  the  Journal   of  the  (1909),  p.  680, 


APPROPRIATION,    ETC.,    OF  ENEMY  MERCHANTMEN      271 

of  the  captor,  and  the  nationahty  of  the  captured  vessel 
and  her  goods ;  and  after  modern  International  Law 
had  grown  up,  it  was  a  recognised  customary  rule  that 
in  time  of  war  the  Admiralty  of  maritime  beUigerents 
should  be  obliged  to  institute  a  court  ^  or  courts,  when- 
ever a  prize  was  captured  by  pubhc  vessels  or  privateers, 
in  order  to  decide  whether  the  capture  was  lawful  or 
not.  These  courts  were  called  Prize  Courts.  This 
institution  has  come  down  to  our  times,  and  nowadays 
all  maritime  States  either  constitute  permanent  Prize 
Courts,  or  appoint  them  specially  in  each  case  of  an 
outbreak  of  war.  The  whole  institution  is  essentially 
one  in  the  interest  of  neutrals,  since  belhgerents  want 
to  be  guarded  by  a  decision  of  a  court  against  claims  by 
neutral  States  regarding  alleged  unjustified  capture  of 
neutral  vessels  and  goods.^  The  capture  of  any  private 
vessel,  whether  'prima  facie  belonging  to  an  enemy  or  a 
neutral,  must,  therefore,  be  submitted  to  a  Prize  Court. 
Prize  Courts  are  not  international  courts,  but  national 
com'ts  instituted  by  Municipal  Law,  and  the  law  they 
administer  is  Municipal  Law,^  based  on  custom,  statutes, 
or  special  regulations  of  their  State.  Every  State  is, 
however,  bound  by  International  Law  to  enact  only 
such  statutes  and  regulations  *  for  its  Prize  Courts  as 

^  In  England  an  Order  in  Council,  the  enemy.     This  practice  is  based 

dated  July  20,   1589,  first  provided  on  the  fact  that — see  above,  §  101  — 

that  all  captures  should  be  submitted  British  Prize  Courts  consider   it  to 

to  the  High  Court  of  Admiralty  ;  see  be  a  rule  of  International  Law  that 

Marsden,  ibid.,  p.  690.  trading  with  the  enemj'  is  ipso  facto 

'  The  fact  that  in  Great  Britain  by  the  outbreak  of  war  prohibited. 

the  Prize  Courts  are    competent  to  See  The  PanarieUos,  (1915)  1  B.  and 

condemn  British  vessels  found  guilty  C.  P.  C.  195  ;  2  B.  and  C.  P.  C.  47. 
of     trading    with    the     enemy    has  '  See  below,  §  434. 

nothing    to   do   with    International  *  The  constitution  and  procedure 

Law,    but   is   entirely   a   matter    of  of  Prize  Courts  in  Great  Britain  are 

Municipal    Law,     just     as     is    the  governed  by  the  Naval  Prize  Act, 

question— see  above,  §  101— whether  1864  (27  &  28  Vict.  c.  25),  the  Prize 

trading  with  the  enemy  is  permitted  Courts  Act,   1894  (57  &  58  Vict.  c. 

or   prohibited.       But,    according   to  39),    the    Prize    Courts    (Procedure) 

British  practice,  British  Prize  Courts  Act,  1914  (4  &  5  Geo.  v.  c.  13),  the 

are  likewise  competent  to  condemn  Prize  Courts  Act,  1915  (5  &  6  Geo. 

merchantmen  of  an  ally  which  have  v.  c.   57),  the  Naval  Prize  (Proced- 

been   found  guilty  of   trading  ^^■ith  ure)  Act,   1916  (6  Geo.  v.  e.  2),  the 


272  WARFARE   ON   SEA 

are  in  conformity  with  International  Law.^  A  State 
may,  therefore,  instead  of  making  special  regulations, 
directly  order  its  Prize  Coui-ts  to  apply  the  rules  of 
International  Law,  and  it  is  understood  that,  when  no 
statutes  are  enacted  or  regulations  are  given.  Prize 
Courts  have  to  apply  International  Law.  Prize  Courts 
may  be  instituted  by  belhgerents  in  any  part  of  their 
territory,  or  the  territories  of  allies,  but  not  on  neutral 
territory.  It  would  nowadays  constitute  a  breach  of 
neutrahty  on  the  part  of  a  neutral  State  to  allow  the 
institution  on  its  territory  of  a  Prize  Court.  ^ 

Whereas  the  ordinary  Prize  Courts  are  national  courts, 
Convention  xii.  of  the  Second  Hague  Conference 
provided  for  the  estabhshment  of  an  International  ^ 
Prize  Court  at  the  Hague,  which,  in  certain  matters, 
was  to  serve  as  a  court  of  appeal  in  prize  cases  ;  but 
this  convention  was  never  ratified,  and  during  the 
World  War  there  was  no  International  Prize  Court. 
Conduct  §  193.  As  soon  as  a  vessel  is  seized,  she  must  be 
to  Port  conducted  to  a  port  where  a  Prize  Court  is  sitting.  As 
of  Prize  a  rulc,  the  officer  and  the  crew  sent  on  board  the  prize 
by  the  captor  will  navigate  her  to  the  port.  This 
officer  may  ask  the  master  and  crew  of  the  vessel  to 
assist  him,  but,  if  they  refuse,  cannot  compel  them. 
The  captor  need  not  accompany  the  prize  to  the  port, 
except  where  an  officer  and  crew  cannot  be  sent  on 
board,  and  the  captured  vessel  is  ordered  to  lower  her 

Naval  Prize  Act,  1918  (8  &  9  Geo.  v.  the  Privy  Council  during  the  World 

c.    30),   and  the  Prize  Court  Rules,  War  in  The  Zamora,  (1916)  2  B.  and 

1914.     The  In.stitute  of  International  C.  P.  C.  1,  which  is  the  leading  case, 

Law  has  in  various  meetings  occupied  so   far  as  British  Prize   Courts  are 

itself   with   capture,   and   embodied  concerned.     See  also  Picciotto,  The 

rules  relating  to  it  in  Articles  100-  Relation  of  International  Law  to  the 

115  oi  its  Manuel  des  Lois  de  la  Ouerre  Laio   of  England   and   The    United 

maritime  adopted  at  its  meeting  at  States  (1915). 

Oxford  in  1913  (see  Annuaire,  xxvi.  *  See  below,  §  327,  and  Article  1 

pp.  667-671).  of   Convention   xiii.  of   the  Second 

^  The  position  of  a  Prize  Court  in  Hague  Conference, 
relation  to  Municipal  and  Interna-  *  See   above,  vol.  i.   §  476a,  and 

tional  Law  was  fully  considered  by  below,  §§  442-447. 


APPROPRIATION,    ETC.,    OF   ENEMY    MERCHANTMEN       273 

flag,  and  to  steer  according  to  orders.  The  captor  must 
in  that  case  conduct  the  prize  to  the  port.  To  which 
port  a  prize  is  to  be  taken  is  not  for  International  Law 
to  determine  ;  it  only  provides  that  the  prize  must  be 
taken  straight  to  a  port  where  a  Prize  Court  sits,  and 
only  in  case  of  distress  or  necessity  is  delay  allowed. 
A  prize  may,  in  case  of  distress,  or  in  case  she  is  in  such 
bad  condition  as  prevents  her  from  being  taken  to  such 
a  port,  if  the  neutral  State  concerned  gives  permission,^ 
be  taken  to  a  near  neutral  port,  and  in  that  event  the 
capturing  man-of-war  as  well  as  the  prize  enjoy  there 
the  privilege  of  exterritoriahty.  But  as  soon  as  circum- 
stances allow,  the  prize  must  be  conducted  from  the 
neutral  port  to  a  port  where  a  Prize  Court  sits,  and  only 
if  the  condition  of  the  prize  makes  this  absolutely 
impossible,  may  the  Prize  Com't  give  its  verdict  in  its 
absence  after  hearing  proper  evidence. 

The  whole  crew  and  cargo  ought,  as  a  rule,  to  remain 
on  board  the  prize  until  they  reach  the  port  of  adjudi- 
cation. But  if  any  cargo  is  in  a  condition  which  pre- 
vents it  from  being  sent  there,  it  may,  according  to  the 
needs  of  the  case,  either  be  destroyed  or  sold  in  the 
nearest  port,  and,  if  sold,  an  account  of  the  proceeds 
has  to  be  sent  to  the  Prize  Court.  Tliis  apphes  also 
to  neutral  goods,  although  they  have,  according  to 
the  Declaration  of  Paris,  to  be  restored  to  their  neutral 
owners. 

§  194.  Since  through  adjudication  by  the  Prize  Courts  Destmc- 
the  ownership  of  captm-ed  private  enemy  vessels  p°^g°^ 
becomes  finally  transferred  to  the  belhgerent  whose 
forces  made  the  capture,  it  is  evident  that  after  transfer 
the  captured  vessel  as  well  as  her  cargo  may  be  destroyed. 
On  the  other  hand,  it  is  hkewise  evident  that,  since  a 
judgment  of  a  Prize  Court  is  necessary  before  the  appro- 

^  See  below,  §  328,  and  Articles  21-23  of  Convention  xiii.  of  the  Second 
Hague  Conference. 

VOL.   II.  S 


274  WARFARE   ON  SEA 

priation  of  the  prize  becomes  final,  a  captured  merchant- 
man must  not,  as  a  rule,  be  destroyed  ^  on  capture 
instead  of  being  conducted  to  the  port  of  adjudication. 
There  are,  however,  exceptions  to  the  rule,  but  no 
unanimity  exists  in  theory  or  practice  as  regards  those 
exceptions.  Whereas  some^  consider  the  destruction 
of  a  prize  allowable  only  in  case  of  imperative  necessity, 
others  ^  allow  it  in  nearly  every  case  of  convenience. 
Thus,  the  Government  of  the  United  States  of  America, 
on  the  outbreak  of  war  with  England  in  1812,  instructed 
the  commanders  of  American  vessels  to  destroy  at 
once  all  captures,  the  very  valuable  excepted,  because 
a  single  cruiser,  however  successful,  could  man  a  few 
prizes  only,  but  by  destroying  each  capture  would  be 
able  to  continue  capturing,  and  thereby  constantly 
diminish  the  enemy  merchant  fleet.*  During  the 
Civil  War  in  America,  the  cruisers  of  the  Southern 
Confederated  States  destroyed  all  enemy  prizes,  because 
there  was  no  port  open  for  them  to  bring  prizes  to. 
During  the  Russo-Japanese  War,  Russian  cruisers 
destroyed  twenty-one  captured  Japanese  merchant- 
men.^ According  to  British  practice,^  the  captor  is 
allowed  to  destroy  the  prize  in  only  two  cases — namely, 
first,  when  the  prize  is  in  such  a  condition  as  prevents 
her  from  being  sent  to  any  port  of  adjudication ;  and, 
secondly,  when  the  capturing  vessel  is  unable  to  spare 
a  prize  crew  to  navigate  the  prize  into  such  a  port. 
The  Manuel  des  Lois  de  la  Guerre  maritime  of  the  Insti- 
tute of  International  Law  has  suggested  for  the  con- 
sideration of  the  States  in  Article  104  a  rule  prohibit- 

^  See  Smith,    The   Deatruction  of  *  U.S.   Naval  War  Code  (Article 

Merchant  Ships  under  International  14)  allowed  destruction  '  in  case  of 

Lavj  (1917),  pp.  27-54.  military  or  other  necessity.' 

^^»  See,  for  instance,  Bluntschli.   §  ,  g^^  Takahashi,  pp.  284-310. 

*  See,   for   instance,  Martens,    ii.  *  TTie  Acteon,  (1815)  2  Dod.   48; 

§  126,  who  moreover  makes  no  differ-  The  Felicity,  (1819)  2  Dod.  381  ;   The 

ence    between    the   prize   being   an  Leucade,    (1855)    Spinks    217.     See 

enemy  or  a  neutral  ship.  also  Holland,  Prize  Lav;,  §§  303-304. 


APPROPRIATION,    ETC.,    OF   ENEMY   MERCHANTMEN      275 

ing  destruction  of  a  captui'ed  enemy  merchantman 
except  '  in  face  of  exceptional  necessity,  i.e.  when  neces- 
sary to  secure  the  safety  of  the  vessel  making  the 
capture  or  the  success  of  the  operations  of  war  in  which 
it  is  at  the  time  engaged.'  ^  Be  that  as  it  may,^  in 
every  case  of  destruction  of  a  prize  the  captor  must 
remove  crew,  ship  papers,  and,  if  possible,  the  cargo, 
beforehand,  and  must  afterwards  send  crew,  papers, 
and  cargo  to  a  port  of  adjudication  for  the  purpose  of 
satisfying  the  Prize  Court  that  both  the  capture  and  the 
destruction  were  lawful. 

If  destruction  of  a  captured  enemy  merchantman 
can,  as  an  exception,  be  lawful,  the  question  as  to 
compensation  for  the  neutral  owners  of  goods  on  board 
requires  attention.^  It  seems  to  be  obvious  that,  if 
the  destruction  of  the  vessel  herself  was  lawful,  and  if 
it  was  not  possible  to  remove  her  cargo,  no  compensa- 
tion need  be  paid."*  An  illustrative  case  happened 
during  the  Franco-German  War.  On  October  21, 
1870,  the  French  cruiser  Desaix  seized  two  German 
merchantmen,  the  Lvdwig  and  the  Vorwdrts,  but 
burned  them  because  she  could  not  spare  a  prize  crew 
to  navigate  the  prizes  into  a  French  port.  The  neutral 
owners  of  part  of  the  cargo  claimed  compensation, 
but  the  French  Conseil  d'Etat  refused  to  grant  in- 
demnities on  the  ground  that  the  action  of  the  captor 
was  lawful.^  A  similar  decision  was  given  by  the 
Hambm'g  Prize  Court  in  1915  during  the  World  War. 
The  Glitra  was  an  Enghsh  merchantman  captured 
by  a  German  submarine,  and  then  sunk,  because  she 

^  See  Annuaire,  xxvi.  p.  669.  *  Wehberg,    p.    295,   and    Smith, 

*  The  whole  matter  is  thoroughly  ap.  cit. ,  pp.  54-58,  object  to  this 
discussed  by  Boeck,  Nos.  268-285;  statement;  but  Nijldecke  in  iT.  F.,ix. 
Dupuis,  Nos.  262-268  ;  and  Calvo,  v.  (1916),  pp.  447-458,  approves  of  it. 
§§  3028-3034.  As  regards  destruc-  *  See  Boeck,  No.  146;  Barboux, 
tion  of  a  neutral  prize,  see  below,  pp.  53, 155  ;  Calvo,  v.  §  3033 ;  Dupuis, 
§  431.  No.  262  ;  Hall,  §  269  ;  Westlake,  ii. 

*  See  Wright  in  A.J. ,  xi.  (1917),  p.    309.     See   also  Article  3  of  un- 
pp.  358-379.  ratified  Hague  Convention  xii. 


276  WARFARE   ON   SEA 

could  not  be  brought  into  a  German  port.     The  Nor- 
wegian  owners   of   the   cargo   claimed   compensation, 
but  the  Prize  Court  refused  to  grant  it,  on  the  ground 
that  the  sinking  was  lawful.^ 
Deetnio-       §  194a.  The  question  of  the  destruction  of  prizes  has 
PriM°by  bccomc   of  particular  importance  through  the  use  of 
^"^■.         submarines.^    That  submarines  can  legitimately  exercise 

mannes.  ...  o  ^ 

the  right  of  visit  and  search  over  enemy  merchantmen, 
and  capture  them,  there  is  not  the  shghtest  doubt. 
But  a  submarine  can  never  spare  a  prize  crew  to 
navigate  a  prize  into  any  port  of  adjudication,  nor  is 
there  any  room  in  a  submarine  to  take  on  board  the 
crew  of  the  prize.  For  this  reason  the  opinion  is  widely 
held  that  a  submarine  may  never  destroy  a  captured 
merchantman.  But  the  practice  of  the  Central  Powers 
dming  the  World  War  was  very  different.  German 
submarines,  even  before  the  general  order  to  torpedo 
without  warning  all  enemy  merchantmen  within  the 
war  area  proclaimed  by  Germany  around  the  British 
Isles,^  destroyed  several  of  their  English  prizes,  after 
having  given  ten  minutes  to  the  crews  to  lower  their 
boats  and  leave  the  ship.  Although  in  these  cases  no 
Hves  were  lost,  because  the  crews  were  either  picked  up 
by  passing  vessels  or  otherwise  reached  the  shore,  they 
were  exposed  to  considerable  danger.  After  February 
1915,  German  submarines  frequently  torpedoed  both 
enemy  and  neutral  merchantmen,  and  great  loss  of 
life  was  caused  thereby.  The  most  appalhng  case  was 
that  of  the  Lusitania,  a  transatlantic  liner,  which  was 
torpedoed  on  May  7,  1915,  near  the  coast  of  Ireland, 
and  over  1100  non-combatant  men,  women,  and  children 

^  See    Deutsche    Juristen    Zeituny  of  the    American    Socitfy   of  Inter- 

(1915),  p.  456.    See  also  the  Hamburg  national  Law,  x.    (1916),  pp.  51-60; 

case  of  The  Indian  Prince,  A.J.,  x.  Hyde,  ihid.,  xi.  (1917),  pp.    26-35; 

(1916),  pp.  930-935.  Perrinjacquet  in  R.G.,  xxiv.  (1917), 

*  On  this  question  see  Garner,  i.  pp.  117-203. 
§§   228-243;    A.J.,    ix.   (1915),   pp. 

666-680 ;  Minor  in  the  Proceeding!  '  See  above,  i.  §  50a. 


APPROPRIATION,    ETC.,    OF   ENEMY   MERCHANTMEN      277 

perished.     Unfortunately,  however,  this  was  but  one 
of  many.^ 

§  195.  Although  prizes  have,  as  a  rule,  to  be  brought  Ransom 
before  a  Prize  Court,  International  Law  nevertheless 
does  not  forbid  the  ransoming  of  the  captured  vessel, 
either  directly  after  the  capture,  or  after  she  has  been 
conducted  to  port,  but  before  adjudication.  How- 
ever, the  practice  of  accepting  and  paying  ransom, 
which  grew  up  in  the  sixteenth  ^  century,  is  in  many 
countries  now  prohibited  by  Municipal  Law.  Thus, 
for  instance.  Great  Britain  by  §  45  of  the  Naval  Prize 
Act,  1864,  prohibits  ransoming  except  when  specially 
provided  for  by  Order  in  Council.  Where  ransom  is 
accepted,  a  contract  of  ransom  is  made  between  the 
captor  and  the  master  of  the  captured  vessel ;  t  e 
latter  gives  a  so-called  ransom  bill  to  the  former,  in 
which  he  promises  the  amount  of  the  ransom.  He  is 
given  a  copy  of  the  ransom  bill  for  the  purpose  of  a 
safe-conduct  to  protect  his  vessel  from  again  being 
captured,  provided  that  he  keeps  his  course  to  the  port 
agreed  upon  in  the  ransom  bill.  To  secure  the  pay- 
ment of  ransom,  an  ofi&cer  of  the  captured  vessel  can 
be  detained  as  hostage  ;  otherwise  the  whole  of  the 
crew  is  to  be  hberated  with  the  vessel,  ransom  being 
an  equivalent  for  both  the  restoration  of  the  prize  and 
the  release  of  her  crew  from  captivity.  So  long  as  the 
ransom  bill  is  not  paid,  the  hostage  can  be  kept  in  cap- 
tivity. But  it  is  exclusively  a  matter  for  the  Municipal 
Law  of  the  State  concerned  to  determine  whether  or 
no  the  captor  can  sue  upon  the  ransom  bill,  if  the  ransom 
is  not  voluntarily  paid.^    Should  the  capturing  vessel, 

*  The  author  had  intended  to  *  See  for  British  practice,  prior  to 
discuss  and  condemn  the  German  the  Naval  Prize  Act,  1864,  Comu  v. 
practice;  but  his  manuscript  does  Blackbume,  (1781)  2  Douglas  640; 
not  indicate  the  precise  form  which  Anthon  v.  Fisher,  (1782)  2  Douglas 
his  arguments  would  have  taken.  649  n.  ;   The  Hoop,  1  C.  Rob.  201  ; 

Hall,    §    151  ;    and     for    American 

*  See  Senior  in  the  Lmv  Qvarterly  practice,  Goodrich  and  De  Forest 
Revieio,  xxxiv.  p.  50.  v,  Oordcm,  (1818)  15  Johnson  6. 


278  WARFARE   ON  SEA 

with  the  hostage  or  the  ransom  bill  on  board,  be  herself 
captured,  the  hostage  is  liberated,  and  the  ransom  bill 
loses  its  effect,  and  need  not  be  paid.^ 
Loss  of  §  196.  A  prize  is  lost — (1)  when  the  captor  inten- 
fspeciaiiy  tionally  abandons  her,  (2)  when  she  escapes  through 
Recap-  being  rescued  ^  by  her  own  crew,  or  (3)  when  she  is 
recaptured.  The  property  in  a  prize  which,  according 
to  International  Law,  the  belligerent  whose  forces 
made  the  capture  acquires,  provided  that  a  Prize 
Court  confirms  the  capture,  is  lost  when  the  prize  is 
lost ;  and  it  seems  to  be  obvious,  and  everywhere 
recognised  by  Municipal  Law,  that  as  soon  as  a  captured 
enemy  merchantman  succeeds  in  escaping,  the  title 
of  the  former  owners  revives  ipso  facto.  But  the  case 
is  different  when  an  abandoned  prize,  whose  crew  have 
been  taken  on  board  the  capturing  vessel,  is  afterwards 
met  and  taken  possession  of  by  a  neutral  vessel,  or  by 
a  vessel  of  her  home  State.  It  is  certainly  not  for 
International  Law  to  determine  whether,  or  not,  the 
original  ownership  revives  through  abandonment ;  this 
is  a  matter  for  Municipal  Law. 

The  case  of  recapture  is  Hkewise  different  from  escape. 
Here  too  Municipal  Law  has  to  determine  whether,  or 
not,  the  former  ownership  revives,  since  International 
Law  only  lays  down  the  rule  that  by  recapture  the 
property  in  the  vessel  reverts  to  the  belligerent  whose 
forces  made  the  recapture.  Municipal  Law  of  the 
individual  States  has  settled  the  matter  in  different 
ways.  Thus  for  Great  Britain  §  40  of  the  Naval  Prize 
Act,  1864,  enacts  that  the  recaptured  vessel,  except 
when  she  has  been  used  by  the  captor  as  a  ship  of  war, 
shall  be  restored  to  her  former  owner  on  his  papng 
one-eighth  to  one-fourth  of  her  value,  as  the  Prize 

^  The    matter   of  ransom   is  dis-  180-183;     Boeck,      Nos.      257-267; 

cussed  with  great  lucidity  by  Senior  Dupuis,  Nos.  269-277. 

in  the  Law  Quarterly  Review,  xxxiv.  *  See  Gregory  in  A.  J.,  xi.  (1917), 

pp.    49-62 ;    see    also   Twiss,   ii.   §§  pp.  315-326, 


APPROPRIATION,   ETC.,    OF   ENEMY   MERCHANTMEN      279 

Court  may  award,  as  prize  salvage,  whether  the  recap- 
ture is  made  before  or  after  the  enemy  Prize  Court 
had  confirmed  the  capture.  Other  States  restore  a 
recaptured  vessel  only  when  the  recapture  is  made 
within  twenty-four  hours  ^  after  capture,  or  before  the 
captured  vessel  is  conducted  into  an  enemy  port,  or 
before  she  is  condemned  by  an  enemy  Prize  Court. 

§  197.  Through  being  captured,  and  afterwards  con-  Fate  of 
demned  by  a  Prize  Court,  a  captured  enemy  vessel  and 
captured  enemy  goods  ^  become,  as  already  explained, 
the  property  of  the  belligerent  whose  forces  made  the 
capture.  But  according  to  the  Declaration  of  Paris, 
neutral  goods,  contraband  excepted,  found  on  enemy 
ships  may  not  be  condemned.  Nevertheless,  all  goods 
found  on  enemy  vessels  are  presumed  ^  to  be  enemy 
unless  claimed  as  neutral  by  neutral  owners ;  more- 
over, only  neutral  merchandise  is  exempt  from  con- 
fiscation, and  not  neutral  goods  other  than  merchan- 
dise.* Further,  neutral  mortgagees  ^  or  pledgees  ^  of 
enemy  vessels,  or  enemy  cargoes,  have  no  claim  to  be 
indemnified  out  of  the  proceeds  of  their  sale. 

What  becomes  of  the  prize  after  condemnation  is 
not  for  International  Law,  but  for  Municipal  Law,  to 
determine.  A  belhgerent  can  hand  the  prize  over  to  the 
captors,  or  keep  her  for  himself,  or  sell  her  and  divide 
the  whole  or  part  of  the  proceeds  among  the  captors, 
or  among  members  of  the  naval  forces  generally.  For 
Great  Britain  the  Naval  Prize  Act,  1918,'^  estabhshed 
a  naval  prize  fund  into  which  the  proceeds  of  sale  of 

^  For  instance,  France;  see  Dupiiis,  *  The  Schlesien,  (1914)   1  B.   and 

Nos.  278-279.  C.  P.  C.  13. 

.  T^    ,  ^      ,  ,,  ^  The  Marie  Glaaer,  (1914)  1  B. 

-  It  does  not    of  course,   matter       ^^^  ^   p   ^   gg     ^^^^^^  p    gig,  and 

whether  the  goods  concerned  were       ^^^  (.^^^j^^^  ^^^^  ^f  rpj^^  p^^^     ^  y 

captured    on    enemy    ships    or    on        j^  ^g^gj        ^03  ^^^  ^j    ^  ^gje), 

merchantmen  saihng  under  the  flag  qQQ 

°;  ^^%fPtf'"f_  belligerent.  See  P"  s  y^^  Odessa.  (1914)  1  B.  and 
above,  feS  102,  1 ,  /  n.  j.   p   (.    jgg^  55^ 

*  See  above,  §  90.  '  8  &  9  Geo.  v.  c.  30. 


280  WARFARE  ON  SEA 

certain  prizes  and  prize  cargoes  were  paid,  and  out  of 
which  prize  money  was  distributed  among  members 
of  the  naval  and  marine  forces.     If  a  neutral  subject 
buys  a  captured  ship  after  her  condemnation,  she  may 
certainly  not  be  attacked  and  captured  by  the  belli- 
gerent to  a  subject  of  which  she  formerly  belonged ;  but 
if  she  is  bought  by  an  enemy  subject,  and  afterwards 
captured,  she  might  be  restored  ^  to  her  former  owner. 
Vessels         §  198.  As  merchantmen  owned  by  subjects  of  neutral 
to  Sub  "^  States  but  saihng  under  an  enemy  flag  are  vested  with 
jjeutrai    ®^^®^y  character,^  they  may  be  captured  and  condemned. 
states,but  This  bcars  hardly  upon  vessels  belonging  to  subjects  of 
unde'?      non-httoral  States  which  have  no  maritime  flag  ;   they 
fiT™^      are  forced  to  navigate  under  the  flag  of  another  State,^ 

and  are,  therefore,  in  case  of  war  exposed  to  capture. 
Vessels  §  199.  Morcovcr,  a  vessel  flying  a  neutral  flag  may  be 
unde"/  captured  and  condemned  if,  for  the  reasons  mentioned 
Fir^'^blit  ^t)ove  in  §§  89,  91,  she  possesses  enemy  character. 
possessing  §  200.  As  regards  goods  consigned  to  enemy  subjects, 
Character,  but  sold  in  trafisitu  to  subjects  of  neutral  States,  no 
Goods  unanimous  practice  is  in  existence,  and  the  attitude 
Neutrals  of  the  different  States  has  been  considered  above  in 
§92. 

IV 

VIOLENCE   AGAINST  ENEMY  PERSONS 

See  the  literature  quoted  above  at  the  commencement  of  §  107. 
See  also  Bonfils,  Nos.  1273-1273^  and  Schramm,  §  16. 

Violence       §  201.  As  regards  kilhng  and  wounding  combatants 

Combft-    i^  ^^^  warfare,  and  the  means  used  for  the  purpose, 

ants.        customary  rules  of  International  Law  are  in  existence, 

according  to   which   only  those   combatants   may   be 

killed  or  wounded  who  are  able  and  wilhng  to  fight, 

^  See  above,  §  196.  ^  See  above,  vol.  i.  §  261. 

2  See  above,  §  89. 


in  tran- 
aitu. 


VIOLENCE   AGAINST  ENEMY   PERSONS  281 

or  who  resist  capture.  Men  disabled  by  sickness  or 
wounds,  or  such  men  as  lay  down  arms  and  surrender, 
or  do  not  resist  capture,  must  be  given  quarter,  except 
in  a  case  of  imperative  necessity  or  of  reprisals.  Poison, 
and  such  arms,  projectiles,  and  materials  as  cause  un- 
necessary injury,  are  prohibited,  as  is  also  kiUing  and 
wounding  in  a  treacherous  way.^  The  Declaration  of 
St.  Petersburg  2  and  the  Hague  Declaration  prohibit- 
ing the  use  of  expanding  (dum-dum)  ^  bullets,  apply  to 
sea  warfare  as  well  as  to  land  warfare,  as  also  do  the 
Hague  Declarations  concerning  projectiles  and  explo- 
sives launched  from  balloons,  and  projectiles  diffusing 
asphyxiating  or  deleterious  gases.* 

All  combatants,  and  also  all  officers  and  members 
of  the  crews  of  captured  merchantmen,  could  formerly  ^ 
be  made  prisoners  of  war.  According  to  Articles  5 
to  7  of  Convention  xi.  of  the  Second  Hague  Con- 
ference,^ such  members  of  the  crews  of  captured 
merchantmen  as  were  subjects  of  neutral  States 
might  never  be  made  prisoners  of  war ;  but  those  of 
the  captain,  officers,  and  members  of  the  crews  who 
were  enemy  subjects,  and,  further,  the  captain  and 
officers,  even  though  subjects  of  neutral  States,  might 
be  made  prisoners  of  war  in  case  they  refused  to  be 
released  on  parole.  During  the  World  War  this  con- 
vention was  not  binding,  because  not  all  the  belli- 
gerents were  parties  to  it,  and  enemy  subjects  who 
were  members  of  the  crews  of  merchantmen  were  made 
prisoners  of  war.  As  soon  as  such  prisoners  are  landed, 
they  fall  under  Articles  4-20  of  the  Hague  Eegulations  ; 

^  See  the  corresponding  rules  for  °  This  was  almost  generally  recog- 
warfare  on  land,  which  are  discussed  nised,  but  was  refused  recognition  by 
above  in  §§  108-110.  See  also  U.S.  Count  Bismarck  during  the  Franco- 
Naval  War  Code,  Article  3.  German  War  (see  below,  §  249)  and 

*  See  above   §  111  ^y  some  German  publicists,  as,  for 
,  „        ,        '  "         '  instance,  Lueder  in  Holtzmdorff.  iv. 

See  above,  §112.  p.  479,  n.  6. 

*  See  above,  §§  113,  114.  «  See  above,  §  8-5, 


282  WARFARE   ON   SEA 

but  as  long  as  they  are  on  board,  the  old  customary 
rule   of   International   Law,   that   prisoners   must   be 
treated   humanely,^  and  not  like   convicts,   must  be 
compHed  with.     Moreover,  the  Hague  Convention  for 
the  Adaptation  of  the  Principles  of  the  Geneva  Con- 
vention  to  Maritime  Warfare  enacts  some   particular 
rules   concerning  the  shipwrecked,  the  wounded,  and 
the  sick   who,  through  falhng  into  the  hands  of  the 
enemy,  become  prisoners  of  war.^ 
Violence       §  202.  Just  as  nuHtary  forces  consist  of  combatants 
non-Com-  aud  uou-combatauts,  so  do  the  naval  forces  of  belh- 
Mera"bers  g^^euts.    Nou-combatauts,    as,    for   instance,    stokers, 
of  Naval    suTgcous,    chaplaius,    members   of   the   hospital   staff, 
and  the  like,  who  do  not  take  part  in  the  fighting,  may 
not  be  attacked  directly  and  killed  or  wounded.^    But 
they  are   exposed  to   all  injuries  indirectly  resulting 
from  attacks  on,  or  by,  their  vessels  ;    and  they  may 
certainly  be  made  prisoners  of  war,  unless  they  are 
members  of  the  religious,  medical,  and  hospital  staff, 
who  are  inviolable  according  to  Article  10  of  Hague 
Convention  x.* 
Violence       §  203.  Likcwisc    cucmy    individuals    who    are    not 
En^emy     members  of  the  naval  forces  at  all,  but  are  found  on 
vMuLis     board  an  attacked  or  seized  enemy  vessel,  if,  and  so 
not  far  as,  they  do  not  take  part  in  the  fighting,  may  not 

to  the  ^"  directly  be  attacked  and  Idlled  or  wounded,  although 
Fm^ti  they  are  exposed  to  all  injury  indirectly  resulting  from 
an  attack  on,  or  by,  their  vessel.  If  they  are  mere 
private  individuals,  they  may  as  an  exception  only, 
and  under  the  same  circumstances  as  private  individuals 
on  occupied  territory,  be  made  prisoners  of  war.^  But 
they  are  nevertheless,  for  the  time  they  are  on  board 

^  See  Holland,  Prize  Law,  §  249,  Article  3. 

and  U.S.   Naval  War  Code,  Articles  ^  See  below,  §  209. 

10,  11.  ''  See    Schramm,    §    16;    see    also 

^  See  below,  §205.  U.S.   Naval  War  Code,  Article  11, 

^  See    U.S.     Naval    War    Code,  and  above,  §  116. 


TREATMENT   OF  WOUNDED   AND   SHIPWRECKED      283 

the  captured  vessel,  under  the  discipline  of  the  captor. 
All  restrictive  measures  against  them  which  are  neces- 
sary are  therefore  lawful,  as  are  also  punishments,  in 
case  they  do  not  comply  with  lawful  orders  of  the 
commanding  officer.  If  they  are  enemy  officials  in 
important  positions,^  they  may  be  made  prisoners  of 
war. 

V 

TREATMENT   OF  WOUNDED   AND   SHIPWRECKED 

Peifls,  §  37— Fillet,  pp.  188-191— Westlake,  ii.  pp.  185-189— Moore,  vii. 
§  1178— Hershey,  Nos.  408-422— Bernsten,  §  12— Bonfils,  Nos.  1280- 
1280»— Pradier-Fod6r6,  viii.  No.  3209— U.S.  Naval  War  Code,  Articles 
21-29 — Ferguson,  The  Red  Cross  Alliance  at  Sea  (1871) — Houette,  De 
V Extension  dee  Principes  de  la  Convention  de  Geneve  aux  Victimes  des 
Guerres  maritimea  (1892) — Cauw^s,  L^ Extension  des  Principes  de  la 
Convention  de  Genive  aux  Guerres  marititnes  (1899) — HoUs,  The  Peace 
Cm/erence  at  the  Hague  (1900),  pp.  120-134— Boidin,  pp.  248-262— 
Dupiiis,  Guerre,  Nos.  82-105— Meurer,  ii.  §§  74-87— Higgins,  pp.  382- 
394 — L^monon,  pp.  526-554  —  Nippold,  ii.  §  33 — Scott,  Con/erencei, 
pp.  599-614— Takahashi,  pp.  375-385— Wehberg,  §  10— Garner,  i.  §§  319- 
327— Fauchille  in  R.G.,  \±  (1899),  pp.  291-302— Bajer  in  E.G.,  viii. 
(1901),  pp.  225-230— Renault  in  A.  J.,  ii.  (1908),  pp.  295-306— Higgins, 
War  and  the  Private  Citizen  (1912),  pp.  73-87,  and  in  the  Larv  Quarterly 
Review,  xxvi.  (1910),  pp.  408-414.  See  also  the  literature  quoted  above 
at  the  commencement  of  §  118. 

§  204.  Soon  after  the  ratification  of  the  Geneva  Con-  Adapta- 
vention,  the  necessity  of  adapting  its  principles  to  Geneva 
naval  warfare  was  generally  recognised,   and  among  Conven- 

P.  *^     .    ,      °  .        tiontoSea 

the  non-ratified  additional  articles  of  1868  were  nine  Warfare. 
which  aimed  at  this.^  But  it  was  not  until  the  Hague 
Conference  in  1899  that  this  was  accompUshed  by  a 
convention  ^  which  comprised  fourteen  articles.  This 
convention  was  replaced  at  the  Second  Hague  Con- 
ference by  Convention  x.  for  the  Adaptation  of  the 
Principles  of  the  Geneva  Convention  to  Maritime  War- 
fare,  which  comprises  twenty-eight  articles.     It  was 

*  See  above,  §  117.  '  Martens,  N.R.G.,  2nd  Ser.  xxvi. 

*  See  above,  §  118,  and  vol.  i.  §  560.        p.  979. 


284  WARFARE   ON   SEA 

signed,  although  with  some  reservations,  by  all  the 
Powers  represented  at  the  conference,  except  Nicaragua 
which  acceded  later,  and  it  has  been  ratified,  with  or 
without  reservations,  by  most  of  the  signatory  Powers. 
It  provides  rules  concerning  the  wounded,  sick,  ship- 
wrecked, and  dead  ;  hospital  ships  ;  sick  -  bays  on 
men-of-war ;  the  distinctive  colour  and  emblem  of 
hospital  ships  ;  neutral  vessels  taking  on  board  belK- 
gerent  wounded,  sick,  or  shipwrecked ;  the  rehgious, 
medical,  and  hospital  stafi  of  captured  ships ;  the 
carrying  out  of  the  convention,  and  the  prevention 
of  abuses  and  infractions. 
The  §  205.  Soldiers,  sailors,  and  other  persons  officially 

Sick^and'  attached  to  fleets  or  armies,  whatever  their  nationahty. 
Ship-  who  are  taken  on  board  when  sick  or  wounded,  must 
be  respected  and  tended  by  the  captors  (Article  11). 
All  enemy  shipwrecked,  sick,  or  wounded  persons  who 
fall  into  the  power  of  a  belligerent  are  prisoners  of  war. 
It  is  left  to  the  captor  to  determine  whether  they  are 
to  be  kept  on  board,  or  sent  to  a  port  of  his  own,  or  a 
neutral  port,  or  even  a  hostile  port.  If  sent  to  a  hostile 
port,  they  may  not  again  serve  in  the  war  (Article  14). 
If  landed  at  a  neutral  port  with  the  consent  of  the  local 
authorities,  they  must  be  guarded  by  the  neutral  State 
so  as  to  prevent  them  from  again  taking  part  in  the 
war^  (Article  15).  After  each  engagement,  both  beUi- 
gerents  must,  so  far  as  miHtary  interests  permit,  take 
measures  to  search  for  the  shipwrecked,  wounded, 
and  sick,  and  protect  them  against  pillage  and  mal- 
treatment (Article  16).  They  must  send  to  the  enemy 
authorities  a  hst  of  names  of  enemy  sick  and  wounded 
picked  up  by  them,  and  information  regarding  intern- 
ments, transfers,  admissions  to  hospital,  and  deaths 
amongst  the  sick  and  wounded  in  their  hands.  They 
must  also  forward  aU  objects  of  personal  use,  valuables, 

^  See  below,  §  348c. 


TREATMENT   OF   WOUNDED   AND   SHIPWRECKED      285 

letters,  etc.,  that  are  found  in  captured  ships  for  trans- 
mission to  the  persons  concerned  (Ai'ticle  17). 

§  205a.  After  each  engagement  both  belhgerents  Treat- 
must,  so  far  as  mihtary  interests  permit,  take  measures  "he'^Dead. 
to  protect  the  dead  against  pillage  and  maltreatment, 
and  they  must  see  that  their  burial,  whether  by  land 
or  sea,  or  cremation,  is  preceded  by  a  careful  examina- 
tion in  order  to  determine  that  life  is  really  extinct 
(Article  16).  They  must  send  to  the  enemy  authorities 
the  military  identification  marks  or  tokens  found  on 
the  dead  ;  they  must  also  forward  all  the  objects  of 
personal  use,  valuables,  letters,  etc.,  which  have  been 
left  by  the  wounded  and  sick  who  die  in  hospital,  for 
transmission  to  the  persons  concerned  (Article  17). 

§  206.  Thi'ee  different  kinds  of  hospital  ships  must  Hospital 
be    distinguished — namely,    military    hospital    ships ;     '^^' 
hospital  ships  equipped  by  private  individuals  or  re- 
hef  societies  of   the   belhgerents  ;    and  hospital  ships 
equipped  by  private  neutral    individuals  and   neutral 
rehef  societies. 

(1)  IMihtary  hospital  ships  (Article  1)  are  ships  con- 
structed or  assigned  by  States  specially  and  solely  to 
assist  the  wounded,  sick,  and  shipwrecked.  Their 
names  must  be  communicated  to  the  belhgerents  at 
the  commencement  of,  or  during,  hostihties,  and  in 
any  case  before  they  are  employed.  They  must  be 
respected  by  the  belhgerents,  they  may  not  be  cap- 
tured while  hostihties  last,  and  they  are  not  on  the 
same  footing  as  men-of-war  during  their  stay  in  a 
neutral  port. 

(2)  Hospital  ships  equipped  wholly,  or  in  part,  at 
the  cost  of  private  individuals,  or  officially  recognised 
rehef  societies  of  the  belligerents,  must  also  be  respected 
(Article  2),  and  are  exempt  from  capture,  provided 
their  home  State  has  given  them  an  official  commission, 
and  a  special  certificate,  and  has  notified  their  names  to 


286  WARFARE   ON   SEA 

the  other  beUigereut  at  the  commencement  of,  or  during, 
hostihties,  and  in  any  case  before  they  are  employed. 

(3)  Hospital  ships,  equipped  wholly,  or  in  part,  at 
the  cost  of  private  individuals,  or  officially  recognised 
rehef  societies  of  neutral  States  (Article  3),  must  like- 
wise be  respected,  and  are  exempt  from  captm^e,  pro- 
vided that  they  are  placed  under  the  control  of  one  of 
the  belhgerents,  with  the  previous  consent  of  their  own 
Government  and  with  the  authorisation  of  the  belli- 
gerent himself,  and  that  their  names  have  been  simi- 
larly notified. 

According  to  Article  4  all  hospital  ships  must  afford 
rehef  and  assistance  to  the  wounded,  sick,  and  ship- 
wrecked of  either  belligerent.  The  respective  Govern- 
ments are  prohibited  from  using  them  for  any  military 
purpose.  Their  commanders  must  not  in  any  way 
hamper  the  movements  of  the  combatants,  and  during 
and  after  an  engagement  they  act  at  their  own  risk  and 
peril.  Both  belhgerents  have  a  right  to  control  and 
visit  all  hospital  ships,  to  refuse  their  assistance,  to 
order  them  off,  to  make  them  take  a  certain  course, 
to  put  a  commissioner  on  board,  and  to  detain  them 
temporarily,  if  important  circumstances  require  this. 

The  protection  to  which  hospital  ships  are  entitled 
ceases  if  they  are  used  to  commit  acts  harmful  to  the 
enemy  (Article  8).  But  it  is  not  lost  merely  because 
the  staff  are  armed  for  the  purpose  of  maintaining  order 
and  defending  the  wounded  and  sick,  or  because  wire- 
less telegraphic  apparatus  is  on  board.  However, 
any  man-of-war  of  either  belhgerent  may,  according 
to  Article  12  (against  which  Great  Britain  made  an 
interpretative  reservation),  demand  the  surrender  of 
wounded,  sick,  or  shipwrecked  who  are  on  board 
hospital  ships  of  any  kind. 

It  is  to  be  regretted  that,  in  practice,  cases  of  the 
abuse   of   hospital   ships   for   mihtary   purposes   have 


TREATMENT   OF   WOUNDED   AND   SHIPWRECKED      287 

occurred.  Thus,  in  1905,  during  the  Russo-Japanese 
War,  the  Orel  ^  (also  called  the  Aryel),  a  Russian 
hospital  ship,  was  captui'ed  and  condemned  by  the 
Japanese  Prize  Courts  for  having  performed,  while 
serving  as  a  hospital  ship,  certain  services  to  the  Russian 
lieet,  which  amounted  to  use  for  mihtary  purposes. 
Again,  in  1915,  during  the  World  War,  the  Ophelia,'^ 
a  German  hospital  ship,  was  captured  and  condemned 
by  the  British  Prize  Court,  because,  while  adapted  as 
a  hospital  ship,  she  was  also  fitted  up  as  a  signalhng 
ship  for  mihtary  purposes. 

Worse  than  the  misuse  of  hospital  ships  for  mihtary 
purposes  was  the  dehberate  pohcy  proclaimed  by 
Germany  ^  during  the  World  War  of  sinking  at  sight 
without  visit  or  search  all  hospital  ships  fomid  in 
certain  waters.  In  January  1917,  after  charging  Great 
Britain  and  France  with  using  hospital  ships  for  the 
transport  of  troops  and  munitions  and  otherwise 
violating  Hague  Convention  x.  (charges  which  were 
promptly  repudiated),  the  German  Govermnent  declared 
that  they  would  '  no  longer  suffer  any  enemy  hospital 
ship  in  the  Enghsh  Channel  or  parts  of  the  North  Sea."  * 
In  March  of  the  same  year,  after  making  further  charges, 
they  declared  that  enemy  hospital  ships  met  in  a  pre- 
scribed area  of  the  Mediterranean  would  be  '  regarded 
by  the  German  naval  forces  as  belhgerent '  and  would 
be  '  attacked  forthwith.'  ^  Even  before  these  pro- 
nouncements hospital  ships  had  been  attacked  by 
German  submarines  ;   thereafter  they  were  freely  sunk 

*  See  Takahashi,  pp.  620-625 ;  Germans  exercise  the  right  to  stop 
Hurst,  ii.  p.  354  ;  and  Higgins,  op.  and  visit  a  hospital  ship  conferred 
cit.,  p.  74r,  and  in  the  Law  Quarterly  by  Article  4  of  Hague  Convention  x., 
Review,  xxvi.  (1910),  p.  408.  and  then  found  nothing  to  support 

*  1  B.  and  C.  P.  C.  210  ;  2  B.  and  any  charge.  Had  there  been  any 
C.  P.  C.  150.  truth   in   the   allegations   made    by 

*  See  Des  Gouttes  in  B.G.,  xxiv.  them  against  the  Allied  Govem- 
(1917),  pp.  469-486.  ments,  they  could  have  proved  them 

*  Pari.  Papers,  Misc.,  No.  16  beyond  question  by  availing  them- 
(1917),  Cd.  8692,  p.  4.     It  appears  selves  of  this  article. 

that  on  only  one  occasion  did  the  *  Ibid.,  p.  6. 


Bays 


288  WARFARE   ON   SEA 

without  warning,  visit  or  search,  and  sometimes  with 
great  loss  of  hfe.  Among  the  many  victims  of  this 
pohcy  were  the  Asturias,  the  Gloucester  Castle,  the 
Donegal,  the  Lanfranc,  the  Dover  Castle,  the  Rewa,  the 
Glenart  Castle,  and  the  Llandovery  Castle} 
Hospital  §  206<2.  For  the  purpose  of  defining  the  status  of 
Ne'ut^rl"  hospital  ships  when  entering  neutral  ports,  an  inter- 
Ports.  national  conference  met  at  the  Hague  in  1904.^  A 
convention  (to  which  Great  Britain  was  not  a  party) 
was  signed  on  December  21,  1904,  and  provided  that 
hospital  ships  compl^nng  with  the  Hague  Convention 
should  be  exempt  from  State  dues  and  taxes,  but 
should  neveit-heless  be  subject  to  search  and  other 
formahties  demanded  by  the  laws  in  force  in  the  port 
concerned. 
Sick-  §  2066.  According  to  Article  7  of  Hague  Convention  x., 

in  case  of  a  fight  on  board  a  man-of-war,  the  sick-bays 
must,  as  far  as  possible,  be  respected  and  spared.  These 
sick-bays,  and  the  material  belonging  to  them,  remain 
subject  to  the  laws  of  war ;  they  may  not,  however, 
be  used  for  any  pm'pose  other  than  that  for  which  they 
were  originally  intended  so  long  as  they  are  required 
for  the  wounded  and  sick.  But  should  the  military 
situation  require  it,  a  commander  into  whose  power 
they  have  fallen  may  nevertheless  apply  them  to  other 
purposes,  provided  that  he  has  pre\'iously  arranged 
proper  accommodation  for  the  wounded  and  sick  on 
board.  The  protection  to  which  sick-bays  are  entitled 
ceases  if  they  are  used  to  commit  acts  harmful  to  the 
enemy  (Article  8).  But  it  is  not  lost  because  the  stafi 
is  armed  in  order  to  defend  the  wounded  and  sick. 

§  207.  All  mihtary  hospital  ships  must  be  painted 
white  outside  with  a  horizontal  band  of  green  about 

^  Details  in  Garner,  i.  §§  320-326,  who  mentions  the  various  unsuccessful 
attempts  to  stop  the  German  practice. 
2  See  above,  vol.  i.  §  592. 


1 


TREATMENT   OF   WOUNDED    AND   SHIPWRECKED      289 

one  metre  and  a  half  in  breadth.     Other  hospital  ships  Distinc- 
iimst  also  be  painted  white  outside,  but  with  a  hori-  Cokjur 
zuatal   band   of   red.     The   boats   and   small   craft  of  J"^  ^™- 
liospital  ships  used  for  hospital  work  must  hkewise  be  Hospital 
[(dinted  white.     Besides  being  painted  a  distinguish-     ''^^' 
ing  colour,   all  hospital  ships  (Article  5)   must  hoist, 
together  with  their  national  flag,  the  white  flag  with  a 
red  cross  stipulated  by  the  Geneva  Convention.^     If 
they  belong  to  a  neutral  State,  they  must  also  fly  at 
the  mainmast  the  national  flag  of  the  belhgerent  under 
whose    control   they   are    placed.     The    distinguishing 
marks  of  hospital  ships  may  at  no  time  be  used  for 
any  other  purpose.     All  hospital  ships  which  wish  to 
ensure  by  night  the  freedom  from  interference  to  which 
they  are  entitled,  must,  subject  to  the  assent  of  the 
belligerent  they  are  accompanying,  take  the  necessary 
measures  to  render  their  special  painting  sufficiently 
plain. 

§  208.  A  distinction  must  be  made  between  neutral  Neutral 
men-of-war  and  private  vessels  assisting  the  sick,  assisting 
wounded,  and  shipwTecked.  the 

r  1  Ti-1  Wounded, 

(1)  If  men-of-war  take  on  board  wounded,  sick,  or  Sick,  or 
shipwrecked  persons,  precaution  must  be  taken,  so  far  ^reeked, 
as  possible,  that  they  do  not  again  take  part  in  the' 
operations  of  war  (Article  13).     They  must  not,  how- 
ever, be  handed  over  to  the  adversary,  but  must  be 
detained  till  the  end  of  the  war.^ 

(2)  Neutral  merchantmen,^  yachts,  or  boats  which 
have  of  their  own  accord  rescued  sick,  wounded,  or 
shipwrecked  men,  or  who  have  taken  such  men  on 
board  at  the  appeal  of  the  belhgerent,  must,  according 
to  Article  9,  enjoy  special  protection  and  certain  im- 

*  There  is  no  objection  to  the  use  crescent,    and  Persia   to   use   a   red 

by  non-Christian  States,  who  object  sun. 

to   the  cross  on   religious   grounds,  ,  „      i_  i         c  o^o 

of   another  emblem.     Thus   Turkey  ^^^  ^^^"'^"'  §  ^*^- 

reser\'ed    the    right    to    use   a    red  ^  See  below,  §  348a. 

VOL.  II.  T 


290  WARFARE   ON   SEA 

munities.  In  no  case  may  they  be  captured  merely 
because  they  have  such  persons  on  board.  But, 
subject  to  any  undertaking  that  may  have  been  given 
to  them,  they  remain  hable  to  capture  for  any  viola- 
tion of  neutrahty  they  may  have  committed.  More- 
over, according  to  Article  12,^  any  man-of-war  of  either 
belligerent  may  demand  from  them  the  surrender  of 
the  wounded,  sick,  or  shipwTecked  on  board. 
The  §  209.  Convention  x.   provides    that    the  rehgious, 

MedSa?,^'  mcdical,  and  hospital  staff  of  any  captured  vessel  are 
H^s  itai   iiiviolable,  and  may  not  be  made  prisoners  of  war,  but 
Staff.       must  continue  to  discharge  their  duties  while  necessary. 
If  they  do  this,  the  belhgerent  into  whose  hands  they 
have  fallen  has  to  give  them  the  same  allowances  and 
the  same  pay  as  are  granted  to  persons  holding  the 
same  rank  in  his  own  navy.     They  may  leave  the  ship, 
when  the  commander-in-chief  considers  it  possible,  and 
on  leaving  they  are  allowed  to  take  with  them  all 
surgical  articles  and  instruments  which  are  their  private 
property  (Article  10). 
Appiica-       §  209cf.  The  provisions  of  Convention  x.   are  only 
Conven-    binding  so  long  as  the  war  is  a  war  between  contract- 
andPre    ^^  Powcrs  ouly  (Article  18).     In  the  case  of  opera- 
vention  of  tious  of  war  betwccn  land  and  sea  forces  of  belligerents, 
its  provisions  only  apply  to  forces  on  board  ship  (Article 
22).     The  contracting  Powers  undertook,  in  case  their 
criminal  laws  were  inadequate,  to  enact,  or  submit  to 
their  legislatures,  measures  necessary  for  checking  indi- 
vidual acts  of  pillage  or  maltreatment  of  the  wounded 
and  sick  in  the  fleet,  and  for  punishing  improper  use 
of  the  distinguishing  marks  of  hospital  ships  (Article 
21). 

*  Against  which  Great  Britain  made  an  interpretative  reservation. 


I 


ESPIONAGE,   TREASON,   RUSES  291 


VI 

ESPIONAGE,   TREASON,   RUSES 

See,  besides  the  literature  quoted  above  at  the  commencement  of  §§  159  and 
163,  Pradier-Fod6r6,  viii.  No.  3157,  and  Bentwich  in  the  Journal  of  the 
Society  of  Comparative  Legislation,  New  Ser.  x.  (1910),  pp.  243-249. 

§  210.  Espionage  ^  and  war  treason  do  not  play  as  large  Espionage 
a  part  in  sea  warfare  as  in  land  warfare  ;  ^    but  they  Treason. 
may  be  employed.     Since  the  Hague  Regulations  deal 
only  with  land  warfare,  there  is  no  legal  necessity  of 
trying  a  spy  in  sea  warfare  by  court-martial  according 
to  Article  30,  although  this  is  advisable. 

§  211.  Ruses  are  customarily  allowed  in  sea  warfare  Ruses. 
within  the  same  hmits  as  in  land  warfare,  perfidy  being 
excluded.  As  regards  the  use  of  a  false  flag,  it  is  by 
most  pubhcists  considered  perfectly  lawful  for  a  man- 
of-war  to  use  a  neutral  or  enemy  flag  (1)  when  chasing 
an  enemy  vessel,  (2)  when  trying  to  escape,  and  (3) 
for  the  purpose  of  drawing  an  enemy  vessel  into  action.^ 
On  the  other  hand,  it  is  universally  agreed  that,  imme- 
diately before  an  attack,  a  vessel  must  fly  her  national 
flag.  Halleck  *  relates  the  following  two  instances : — 
In  1783  the  Syhille,  a  French  frigate  of  thirty-eight 
guns,  enticed  the  British  man-of-war  Hussar  by  dis- 

^  As    regards    the    case    of     The  flag  (see  Martens,  ii.  §  133,  p.  566). 

Haimun,  see  below,  §  356.  The  use  of  a  neutral  or  enemy  flag 

*  See  above,  §§  159-162.  is   considered  to   be   lawful,  among 

^  The   use   of  a  false  flag  on  the  others,  by  Ortolan,  ii.  p.  29  ;  Fiore, 

part  of  a  belligerent  man-of-war  is  iii.  No.   1340  ;  Perels,  §  35,  p.  183  ; 

analogous  to  the  use  of  the  enemy  Fillet,    p.    116;    Bonfils,  No.    1274; 

flag  and  the  like  in  land  warfare  ;  Calvo,   iv.  2106 ;    Hall,  §  187.     See 

see  above,  §  164.     British  practice —  also   Fillet   in   R.G.,  v.   (1898),  pp. 

see   Holland,    Prize  Law,    §   200 —  444-451.     But    see     the    arguments 

permits   the   use    of    false    colours.  against  the   use   of   a   false  flag   in 

U.S.    Naval   War  Code,    Article  7,  Pradier-Fod6r6,    vi.  No.    2760,   and 

forbade   it  altogether,   but   as   late  Wehberg,  pp.  261-262.     The  right  of 

as  1898,  during  the  war  with  Spain,  a  belligerent  merchantman  to  use  a 

two  American  men-of-war  used  the  false  flag  was  discussed  by  the  British 

Spanish   flag   (see    Perels,    p.    183).  and  United  States  Government  dur- 

IXiring  the  war  between  Turkey  and  ing   the    World    War.       See    Pari. 

Russia,  in  1877,  Russian  men-of-war  Papers,  Misc., No.  6  (1915),  Cki.  7816. 
in  the  Black   Sea  used  the  Italian  *  vol.  i.  p.  568. 


292  WAKFARE   ON   SEA 

playing  the  British  flag,  and  intimating  herself  to  be  a 
distressed  prize  of  a  British  captor.  When  the  Hussar 
approached  to  succour  her,  she  at  once  attacked  without 
showing  the  French  flag,  but  was  overpowered  and 
captured.  The  commander  of  the  Hussar  then  publicly 
broke  the  sword  of  the  commander  of  the  Syhille,  whom 
he  justly  accused  of  perfidy,  although  the  French  com- 
mander was  acquitted  when  subsequently  brought  to  trial 
by  the  French  Government.  In  1813  two  merchants  of 
New  York  carried  out  a  plan  for  destroying  the  British 
man-of-war  Ramillies  in  the  following  way.  A  schooner, 
with  some  casks  of  flour  on  deck,  was  laden  with  several 
casks  of  gunpowder  having  trains  leading  from  a 
species  of  gunlock,  which,  by  the  action  of  clock-work, 
was  to  go  off  at  a  given  time  after  it  had  been  set, 
and  came  up  to  the  Ramillies  in  order  to  be  captured. 
The  Ramillies  then  sent  a  boat  with  thirteen  men  and 
a  lieutenant  to  cut  her  off.  Subsequently  the  crew  of 
the  schooner  abandoned  her,  and  she  blew  up  with  the 
lieutenant  and  his  men  on  board. 

Vattel  ^  relates  the  following  case  of  perfidy  : — In 
1755,  during  war  betw^een  Great  Britain  and  France, 
a  British  man-of-war  appeared  off  Calais,  made  signals 
of  distress,  and  then  seized  a  French  sloop  and  some 
sailors  who  came  to  bring  her  help.  Vattel  was  himself 
not  certain  whether  this  case  was  fact  or  fiction.  But 
there  is  no  doubt  that,  if  true,  it  is  an  example  of 
perfidy,  which  is  not  aflowed. 

On  the  other  hand,  the  following  is  a  perfectly  legiti- 
mate ruse  which  occurred  during  the  World  War.  At 
the  end  of  October  1914,  the  German  cruiser  Emden, 
hiding  her  identity  by  rigging  up  a  dummy  fourth 
funnel  and  flying  the  Japanese  flag,  passed  the  guard- 
ship  of  the  harbour  of  Penang  in  the  Malay  States, 
made  no  reply  to  its  signals,  came  down  at  full  speed 

1  vol.  iii.  §  178. 


REQUISITIONS,    CONTRIBUTIONS,    BOMBARDMENT      293 

on  the  Russian  cruiser  Zhenishug,  and  then,  after  lower- 
ing the  Japanese  flag  and  hoisting  the  German  flag, 
opened  fire  and  torpedoed  her. 


VII 

REQUISITIONS,   CONTRIBUTIONS,   BOMBARDMENT 

Hall,  §  140*— Lawrence,  §  204— Westlake,  ii.  pp.  182-184— Moore,  vii.  §§ 
llrtr)-1174— Hershey,  No.  427— Taylor,  §  499— Bonfils,  Nos.  1277-1277' 
— Despagnet,  Nos.  618-618  his — Fiore,  Code,  Nos.  1655-1664 — Pradier- 
Fod6r6,  viii.  Nos.  3153-3154— Nys,  iii.  pp.  392-396— Pillet,  p.  117— 
Perels,  §  35,  p.  181— Holland,  Studies,  pp.  96-111— Dupuis,  Nos.  67-73, 
and  Guerre,  Nos.  42-47 — Barclaj',  Problems,  p.  51 — Higgins,  pp.  352- 
357 — L6monon,  pp.  503-525 — Bernsten,  §  7,  iii. — Boidin,  pp.  201-215 
— Nippold,  ii.  §  28 — Scott,  Conferences,  pp.  587-598,  and  in  A. J.,  ii, 
(1908),  pp.  285-294— Wehberg,  pp.  93-97— Garner,  i.  §§  273-278. 

§  212.  No  case  has  to  my  knowledge  occurred  in  Requisi- 
Europe  ^  of  requisitions  or  contributions  imposed  by  contrtbu- 
naval  forces  upon  enemy  coast  towns.     The  question  ^Jo"^  "po" 
of  their  legahty  was  raised  long  ago  by  an  article  on  Towns, 
naval  warfare  of  the  future,  pubhshed  in  1882  by  the 
French  Admiral  Aube  in  the  Revue  des  Deux  Mondes.^ 
Aube  pointed  out  that  one  of  the  tasks  of  a  fleet  would 
be  to  attack  and  destroy  by  bombardment  fortified  and 
unfortified  military  and  commercial  enemy  coast  towns, 
or  at  least  to  compel  them  mercilessly  to  submit  to  re- 
quisitions and  contributions.     During  the  British  naval 
manoeuvres  of  1888  and  1889  imaginary  contributions 
were  imposed  upon  several  coast  towns,  and  this  prompted 
Hall  ^  to  consider  carefully  under  what  conditions  re- 
quisitions and  contributions  would  be  lawful  in  sea 
warfare.     Starting  from  the  principles  regarding  requi- 
sitions and  contributions  in  land  warfare,  he  concluded 
that  they  might  also  be  levied  in  sea  warfare,  provided 
a  force  was  landed  which  actually  took  possession  of 

*  Holland,  ^^tfZies,  p.  101,  mentions  *  vol.  1.  p.  331. 

a    case    which    occurred    in    South 
America  in  1871.  '  §  140*. 


294  WARFARE   ON  SEA 

a  coast  town  and  established  itself  there,  although  only 
temporarily,  until  the  imposed  requisitions  and  con- 
tributions had  been  compHed  with  ;  but  that  no  requi- 
sitions or  contributions  could  be  demanded  by  a  single 
message  sent  on  shore  under  threatened  penalty  of 
bombardment  in  case  of  refusal.  There  is  no  doubt 
that  Hall's  arguments  are,  logically,  correct ;  but  it 
was  not  at  all  certain  how  the  naval  Powers  regarded 
them  until  the  Second  Hague  Conference  met.  That 
conference  produced  a  convention  (ix.),^  two  articles 
of  which — 3  and  4 — deal  with  requisitions  and  contri- 
butions. 

According  to  Article  3  undefended  ports,  towns, 
villages,  dwelhngs,  or  other  buildings  may  be  bom- 
barded by  a  naval  force,  if  the  local  authorities,  on  a 
formal  summons  being  made  to  them,  decHne  to  comply 
with  requisitions  for  provisions  or  suppHes  necessary 
for  the  immediate  use  of  the  naval  force  concerned. 
These  requisitions  must  be  proportional  to  the  re- 
sources of  the  place  ;  they  can  only  be  demanded  by 
the  commander  of  the  naval  force  concerned  ;  they 
must  be  paid  for  in  cash,  and,  if  this  is  not  possible  for 
want  of  sufficient  ready  money,  their  receipt  must  be 
acknowledged. 

As  regards  contributions.  Convention  ix.  does  not 
directly  forbid  a  demand  for  them,  but  Article  4  expressly 
forbids  bombardment  of  undefended  places  by  a  naval 
force  on  account  of  non-payment  of  money  contribu- 
tions ;    in  practice,  therefore,  the  demand  for  contri- 
butions will  not  occur  in  naval  warfare. 
Bombard-      §  213.  There  is  no  doubt  whatever  that  enemy  coast 
Xe°*  °      towns  which  are  defended  may  be  bombarded  by  naval 
Enemy     forccs,  actiug  either  independently,  or  in  co-operation 
with  a  besieging  army.     But  before  the  Second  Hague 
Conference  of  1907  the  question  was  not  settled  as  to 

^  See  above,  vol.  i.  §  568a. 


REQUISITIONS,    CONTRIBUTIONS,   BOMBARDMENT      295 

whether  or  not  open  and  undefended  coast  places  might 
be  bombarded  by  naval  forces.  The  Institute  of  Inter- 
national Law  in  1895,  at  its  meeting  at  Cambridge, 
appointed  a  committee  to  investigate  the  matter.^  On 
the  basis  of  the  report  of  this  committee  the  Institute 
adopted  for  consideration  by  the  States  a  body  of  rules 
declaring  that  the  law  of  bombardment  was  the  same 
in  both  land  warfare  and  sea  warfare. 

The  First  Hague  Conference  did  not  settle  the  matter, 
but  suggested  that  it  should  be  considered  at  a  sub- 
sequent conference.  The  Second  Hague  Conference,  by 
Convention  ix.,  provided  detailed  rules  concerning  all 
the  points  in  question  : — 

(1)  The  bombardment  of  undefended  ports,  towns, 
villages,  dwelhngs,  or  other  buildings  by  naval  forces 
is  under  all  circumstances  and  conditions  prohibited 
(Article  1).  To  define  the  term  '  undefended,"  Article 
1  expressly  enacted  that '  a  place  cannot  be  bombarded 
solely  because  automatic  submarine  contact  mines  are 
anchored  off  the  harbour,"  but  Great  Britain,  France, 
Germany,  and  Japan  entered  a  reservation  against 
this,  since  they  correctly  considered  such  a  place  to 
be  '  defended." 

(2)  Although  undefended  places  themselves  are 
exempt,  nevertheless  mihtary  works,  mihtary  or  naval 
estabhshments,  depots  of  arms  or  war  material,  work- 
shops or  plant  which  could  be  utihsed  for  the  needs  of 
the  hostile  fleet  or  army,  and  men-of-war  in  the  harbour 
of  undefended  places,  may  be  bombarded ;  and  no 
responsibihty  is  incurred  for  any  unavoidable  damage 
caused  thereby  to  the  undefended  place  or  its  inhabitants. 
As  a  rule,  however,  the  commander  must,  before  re- 

^  Int-eresting  extracts  from  its  re-  presented  in  1896  at  the  meeting  of 

port  (see  Annuaire,  xv.   (1896),  pp.  the  Institute  at  Venice,  were  printed 

148-150,  313),  drafted   by  Professor  in  the  last  edition  of  this  treatise. 

Holland  with  the  approval  of  the  Dutch  But  the   World    War    has    robbed 

General    Den    Beer   Portugael,    and  them  of  much  of  their  importance. 


296  WAEFARE   ON  SEA 

sorting  to  bombardment  of  these  works,  ships,  and  the 
like,  give  warning  to  the  local  authorities  so  that  they 
may  themselves  destroy  them.  Only  if,  for  military 
reasons,  immediate  action  is  necessary,  and  no  delay 
can  be  allowed  to  the  enemy,  may  bombardment  be 
resorted  to  without  previous  warning,  the  commander 
being  compelled  to  take  all  due  measures  in  order  that 
the  undefended  place  itself  may  sufier  as  little  harm 
as  possible  (Article  2). 

(3)  In  case  undefended  places  do  not  comply  with 
legitimate  requisitions,^  they  may  be  bombarded. 

(4)  In  case  of  bombardments,  all  necessary  steps 
must  be  taken  to  spare  buildings  devoted  to  pubhc 
worship,  art,  science,  or  charitable  purposes ;  historical 
monuments  ;  hospitals,  and  places  where  the  sick  or 
wounded  are  collected,  provided  they  are  not  at  the 
time  used  for  mihtary  purposes.  To  enable  the  attack- 
ing force  to  carry  out  this  article,  the  privileged  build- 
ings, monuments,  and  places  must  be  indicated  by 
visible  signs,  consisting  of  large  stiff  rectangular  panels, 
divided  diagonally  into  two  coloured  triangular  portions, 
the  upper  portion  black,  the  lower  portion  white  (Article 
5).  Unless  mihtary  exigencies  render  it  impossible, 
the  commander  of  an  attacking  naval  force  must, 
before  commencing  the  bombardment,  do  all  in  his 
power  to  warn  the  authorities  (Article  6). 

(5)  The  giving  over  to  pillage  of  a  town  or  place, 
even  when  taken  by  assault,  is  forbidden  (Article  7). 

The  first  case  in  which  these  rules  were  tested  in 
practice  occurred  during  the  Turco-Itahan  War.  On 
February  25,  1912,  Admii'al  Faravelh,  the  commander 
of  an  Italian  squadron,  surprised,  at  dawn,  the  Turkish 
gunboat  Awni-Illa,  and  a  torpedo  boat,  in  the  port  of 
Beirut,  and  called  upon  them  to  surrender,  giving  them 
until  nine  o'clock  to  do  so.     The  demand  was  com- 

^  See  above,  §  212. 


INTERFERENCE   WITH  TELEGRAPH   CABLES         297 

muDicated  to  the  governor  and  the  consular  autho- 
rities. At  nine  o'clock  the  Turkish  vessels  were  again, 
by  signal,  summoned  to  surrender,  and  as  no  reply 
was  received,  they  were  fired  at  and  destroyed,  though 
at  first  they  vigorously  answered  the  fire  of  the  Itahans. 
Shells  missing  the  vessels  and  bursting  on  the  quay 
killed  and  wounded  a  number  of  individuals  and 
damaged  several  buildings.  The  Turkish  Government 
protested  against  this  procedure  as  a  violation  of  Con- 
vention IX.,  but,  if  the  report  of  Admiral  Faravelli 
was  accurate,  the  protest  was  unfounded. 

During  the  World  War  the  Hague  Convention  was 
not,  or  may  not,  have  been  in  strict  law  binding,  since 
not  all  the  belhgerents  were  parties  to  it.  However 
this  may  be,  the  German  bombardments  of  Scarborough, 
Hartlepool,  Whitby,  Whitehaven,  and  other  Enghsh 
coast  towns  ignored  the  spirit  of  the  convention,  for 
these  raids  had  no  mihtary  purpose  whatever,  unless  it 
is  a  legitimate  mihtary  purpose  to  attempt  to  frighten 
and  terrorise  the  civil  population  of  the  enemy. 

VIII 

INTERFERENCE   WITH   SUBMARINE  TELEGRAPH  CABLES 

Moore,  vii.  §  1176— Hershey,  No.  397— Westlake,  ii.  pp.  116-119— Liszt, 
§  41,  iii.— Bonfils,  No.  1278— Pratlier-Fod6r6,  vi.  No.  2772— Nys,  iii.  pp. 
314-327— Fiore,  iii.  No.  1387,  and  Code,  Nos.  1672-1677— Perels,  §  35, 
p.  185— Perdrix,  Les  Cables  sousmarins  et  leur  Protection  Internationale 
(1902) — Kraemer,  Die  unterseeischen  Telegraphenkabel  in  Kriegszeiten 
(1903) — Scholz,  Krieg  und  Seekabel  (1904) — ^Jouhannaud,  Les  Cdbles  soxu- 
marins  (1904) — Zuculin,  I  Cavi  sottomarini  e  il  Telegrafo  tenza  Fili  nel 
Diritto  di  Guerra  (1907) — Wehberg,  pp.  134-138 — Holland  in  Journal 
de  Droit  international  (Clunet),  xxv.  (1898),  pp.  648-652,  and  War,  No. 
114 — Goffin  in  the  Law  Quarterly  Review,  xv.  (1899),  pp.  145-154 — 
'Ba.v  in  the  Archiv  fur  Oeffentlichea  Recht,  xv.  (1900),  pp.  414-421 — Rey 
in  R.G.,  viii.  (1901),  pp.  681-762— Dupuis  in  R.O.,  x.  (1903),  pp.  532- 
547 — Nordoninthe  Law  Magazine  and  Review,  xxxii.  (1907),  pp.  166- 
184— Cybichowski  in  Z.L,  xvii.  (1907),  pp.  160-201— Garner,  ii.  §  560— 
See  also  the  literature  quoted  above,  vol.  i.,  at  the  commencement  of 
§286. 


298  WARFARE   ON  SEA 

Uncer-  §  214.  As  the  International  Convention  for  the  Pro- 
RiieJcon-  tection  of  Submarine  Telegraph  Cables  of  1884  ^  expressly 
cerning     stipulates  bv  Article  15  that  freedom  of  action  is  re- 

Interier-  r  j 

ence  with  served  to  belKgereuts,  the  question  is  not  settled  how 
marine  far  beUigereuts  are  entitled  to  interfere  with  submarine 
g®{j|g*P^  telegraph  cables.  The  Second  Hague  Conference  in- 
serted in  Article  54  of  the  Hague  Regulations  a  pro- 
vision that  submarine  cables  coimecting  occupied 
enemy  territory  with  a  neutral  territory  should  not 
be  seized  or  destroyed,  and  that,  if  a  case  of  absolute 
necessity  compelled  the  occupants  to  seize  or  destroy 
such  a  cable,  it  must  be  restored  after  the  conclusion 
of  peace  and  compensation  paid.  But  there  are  no 
rules  for  other  possible  cases  of  seizure  and  destruction.^ 
During  the  World  War,  the  belhgerents  cut,  and  in 
many  cases  diverted  and  used,  cables  communicating 
with  enemy  territory,  and  at  the  Peace  Conference  at 
Paris  questions  arose  as  to  the  legahty  of  these  actions, 
and  also  as  to  whether  cables  belonging  to  an  enemy 
company  or  an  enemy  State  were  subject  to  the  right 
of  capture  of  enemy  property  at  sea.^  By  the  Treaty 
of  Peace  with  Germany,  Germany  renounced  on  behalf 
of  herself  and  her  subjects  all  rights  in  any  of  the 
cables  there  mentioned,  though  the  value  of  those  that 
were  privately  owned  was  to  be  credited  to  the  reparation 
account.*  But  neither  this  provision,  nor  the  provisions 
of  other  treaties  of  peace,  can  be  regarded  as  enunciating 
any  rule  of  law  on  a  subject  quite  unsettled.^ 

^  See  above,  vol.  i.  §§  286,  287.  they   are   not,  and  so  does   Scholz, 

*  The  Institute   of    International       op.    cit.,  but   I  have  no  doubt  that 
Law  adopted  five  rules  at  its  meeting       they  are. 

at  Brussels  in  1902  (see  Annuaire,  *  Article     244,    and    Annex    vii. 

xix.  (1902),  p.  331);   but  they  were  thereto. 

superseded    by   Article    54    of    the  *  It  is  impossible  for  a  treatise  to 

Manuel  des  Lois  de  la  Ouerre  mari-  discuss  the  details  of  this  absolutely 

time,  adopted  by  the  Institute  at  its  unsettled  branch  of  the  law.    Readers 

meeting   at   Oxford   in    1913.     (See  who  take  a  particular  interest  in  it 

Annuaire,  xxvi.  (1913),  p.  657.)  may   be   referred    to   the    excellent 

*  Latifi,      Effects     of     War     on  monograph   of    Scholz,    Krieg    und 
Property  {1^09),   p.    114,   says  that  Seekabel  {IQO'i). 


CHAPTER  IVa 

AIR  WARFARE 

Bonfils,  §§  1440* "— Despagnet,  No.  721  ?)i5— M^rignhac,  iii".  pp.  299-345— 
Meyer,  Die  Luftachiffahrt  in  kriegsrechtlicher  Bdeuchtung  (1909) — Philit, 
La  Ouerre  a^We7me  (1910)— Stael-Holstein,  La  Reglementatian  de  la  Guerre 
des  Airs  (1911) — Bellenger,  La  Guerre  adrienne  et  le  Droit  international 
(1912)— Spaight,  Aircraft  in  War  (1914)— Garner,  i.  §§  291-312— Nye, 
Fauohille  and  Bar  in  Annuaire,  xix.  (1902),  pp.  58-114,  xxiv.  (1911), 
pp.  23-133— Fauchille  in  R.G.,  viii.  (1901),  pp.  414-485,  xxiv.  (1917), 
pp.  56-74— Ellis  in  A.J.,  viii.  (1914),  pp.  256-277— Picciotto  in  the 
Journal  of  Comparative  Legislation,  New  Ser.  xv.  pt.  ii.  (1915),  pp. 
150-155 — Winfield  in  the  Lav^  Magazine  and  Review,  xl.  (1914-1915), 
pp.  257-271,  and  the  literature  quoted  above,  vol.  i.  p.  352. 

§  214a.  When  the  First  Hague  Conference  met  in  Rules 
1899,  the  destructive  possibihties  of  aircraft  were  worid 
beginning  to  arouse  speculation  everywhere.  Some  ^^*^- 
small  use  of  balloons  had,  indeed,  been  made  in  pre- 
vious wars ;  but  navigable  air-vessels,  capable  of  ex- 
tensive use  as  engines  of  war,  then  for  the  first  time 
seemed  to  be  within  the  reach  of  practical  science.  In 
this  atmosphere,  the  conference  adopted  an  easy  but 
inconclusive  solution  of  the  difiiculties  by  forbidding 
the  launching  of  projectiles  or  explosives  from  balloons 
or  air-vessels  for  a  term  of  five  years.^  Between  the 
First  and  the  Second  Hague  Conferences  there  was 
marked  progress  in  aerial  invention,  which  led  to  a 
change  of  attitude  on  the  part  of  many  important 
States,  and  though  the  conference  of  1907  renewed 
the  prohibition  against  launching  explosives  or  pro- 
jectiles from  aircraft  up  to  the  close  of  the  Third  Hague 
Conference,    many   of   the   stronger   mihtary    Powers 

^  See  above,  §  114. 

899 


300  AIR   WARFARE 

refused  to  sign  the  declaration  by  which  the  prohibi- 
tion was  prolonged.  However,  to  Article  25  of  the 
Hague  Regulations,  which  prohibits  attack  or  bom- 
bardment of  towns,  habitations  or  buildings  which  are 
not  defended,^  were  added  the  words  '  by  any  means 
whatever,'  and  these  words  were  designed  to  cover 
bombardment  by  aircraft.  The  legal  position  of  air- 
craft in  war  was  again  considered  by  the  Institute  of 
International  Law,  at  its  meeting  at  Madrid  in  1911, 
and  the  principle  was  adopted  ^  that  aerial  warfare 
must  not  comprise  greater  danger  to  the  person  and 
the  property  of  the  peaceful  population  than  land  or 
sea  warfare.  But  the  dehberations  of  the  Institute 
could  not,  of  course,  create  International  Law  ;  and 
the  Hague  declaration  and  Article  25  of  the  Hague 
Regulations  were  almost  ^  the  only  rules  relating  to 
aircraft  in  war  existing  at  the  outbreak  of  the  World 
War.  Of  these,  the  declaration  was  certainly  not 
binding,  for,  among  other  belhgerents,  neither  France 
nor  Germany  had  signed  it,*  and  even  the  binding 
force  of  Article  25  was  controversial.^  Assuming  that 
Article  25  was  binding,  there  was  at  any  rate  no  rule 
to  determine  what  constitutes  a  '  defended '  place 
within  its  meaning.  In  truth,  only  during  this  war 
were  the  larger  possibihties  and  hues  of  development 
of  air  warfare  for  the  first  time  discovered,  and  the 
Law  of  Nations,  as  it  stood  at  its  outbreak,  was  in- 
adequate to  cope  with  the  new  problems  raised  by 
practical  experience. 
§  2146.  For  aircraft  were  used  freely  by  all  the  belli- 


^  See  above,  §  156.  the   seizure  by  an    occupying   belli- 

*  See  Anmiaire,    xxiv.   (1911),    p.  gerent  of   'les  moyens  affect6s  .  .   . 

346.  dans  les   airs  a  la  transmission  des 

'  See,  however,  Article  29  of  the  nouvelles,  au  transport  des  personnes 

Hague  Regulations  (above,   §    160),  ou  des  choses.' 

which   deals    with   the   carrying   of  4„        ,           sii/i 

despatches  by  balloons,  and  Article  ^^^  a.hoxe,  §114. 

53  (above,  §  137),  which  deals  with  ^  See  Garner,  i.  §  297. 


I 


AIR   WARFARE  301 

^erents  in  the  World  War,  and  for  many  different  kinds  Practice 
of  work.  They  were  the  eyes  of  armies  in  the  held,  J^J'^^^i^j 
;uid  of  the  fleets  at  sea.  They  searched  out  the  dis-  ^'^^■ 
positions  of  enemy  formations,  and  the  location  of  his 
defences  and  reserves  ;  they  watched  his  fleets,  and 
followed  the  course  of  his  submarines.  They  also 
played  their  part  in  naval  and  military  operations, 
eliopping  bombs  on  ships  during  actions  at  sea,  and  on 
munition  dumps,  biUets,  supply  columns,  reserve  troops, 
and  a  hundred  other  objects  during  actions  on  land. 
Hovv'cver,  these  were  not  the  activities  wliich  provoked 
indignation  and  controversy ;  but  the  raids  upon  cities 
far  from  the  theatre  of  war,  made  first  by  Germany 
and  her  alhes  and  eventually  undertaken  by  her  adver- 
saries reluctantly  and  by  way  of  reprisals.  Some  of 
these  raids  aimed  at  the  destruction  of  objects  of 
mihtary  value  ;  others  were  merely  to  strike  terror 
among  the  civilian  population  by  waging  war  upon 
them.^  The  objection  to  raids  on  objects  of  military 
importance  far  from  the  battlefield  is  that  aircraft  are 
by  no  means  certain  of  their  aim,  and  their  bombs  are 
just  as  hkely  to  fall  among  a  dense  civihan  population 
from  whom  all  fit  men  of  mihtary  age  have  already 
been  taken  for  the  armies.  It  seems  clear  that  the 
damage  to  objects  of  mihtary  value  done  by  such 
raids  during  the  World  War  was  unimportant,  while 
the  damage  to  civihan  hfe  and  property  was  great. 
The  legal  objection  to  raids  upon  civihans  is  that  they 
violate  the  rule  that  private  enemy  individuals,  in  so 
far  as  they  do  not  take  part  in  the  fighting,  may  not 
be  directly  attacked  and  killed  or  wounded.^ 

§  214c.  The  present  rules  of  International  Law  are  The 
inadequate  for  the  regulation  of  air  warfare.^    ■'^•^^  Position 

*  Details  in  Garner,  i.  §§  292-296.         tion  does  not  affect  the  freedom  of 

•  o        u  c  1 1  ^  action  of  the  parties  in  war,  whether 
oee  above,  s  Ho.  u  n-  ^r  j.     ■,        o 

'  as  belligerents  or  as  neutrals.     See 

'  The  International   Air  Conven-       above,  vol.  i.  §  197c. 


302  AIR   WARFARE 

only  are  the  limits  within  which  aircraft  ought  to  be 
allowed  to  raid  outside  the  theatre  of  naval  and  mihtary 
operations  undetermined  ;  there  are  a  number  of  other 
unsettled  questions,  such  as  those  connected  with 
bombardment  within  the  theatre  of  naval  and  mihtary 
operations,^  attacks  on  merchantmen  at  sea,^  destruc- 
tion of  prizes,^  dropping  proclamations,*  and  the  duties 
of  neutrals  towards  crews  and  material  rescued  from 
aircraft  wrecked  at  sea  and  brought  within  their  juris- 
diction,^ in  regard  to  which  points  of  doubt  occur. 

However  this  may  be,  there  can  be  no  doubt  that 
the  general  principles  laid  down  in  the  Declaration  of 
St.  Petersburg  of  1868,  in  the  two  declarations  adopted 
by  the  First  Hague  Conference  concerning  expanding 
bullets  and  projectiles  difiusing  asphyxiating  or  dele- 
terious gases,  in  the  Hague  Regulations  concerning 
land  warfare,  and  the  hke,  must  find  apphcation  as 
regards  violence  directed  from  aircraft. 

^  See  above,  §  155.  *  See  below,  §  255,  and  Garner, 

'     '  *  See  below,  §  341a,  and  Garner, 

3  See  above,  §  194.  i.  §  302. 


CHAPTER  Y 

NON-HOSTILE   RELATIONS   OF    BELLIGERENTS 

I 

ON   NON-HOSTILE   RELATIONS   IN   GENERAL   BETWEEN 
BELLIGERENTS 

Grotius,  iii.  c.  19 — Pufendorf,  viii.  c.  7,  §§  1-2 — Bynkershoek,  Quaestionea 
Juria  publici,  i.  c.  1— Vattel,  iii.  §§  174-175— Hall,  §  189— Lawrence, 
§  210— Phillimore,  iii.  §  97— Halleck,  ii.  pp.  345-349— Taylor,  §  508— 
Wheaton,  §  399— Bluntschli,  §  679— Heffter,  §  141— Lueder  in  Holtzen- 
dorff,  iv.  pp.  525-527  —  Ullmann,  §  185  — Bonfils,  Nos.  1237-1238— 
Despagnet,  No.  555— Pradier-Fod^r6,  vii.  Nos.  2882-2887— Rivier,  ii. 
p.  360— Nys,  iii.  p.  473— Calvo,  iv.  §§  2411-2412— Fiore,  iii.  No. 
1482,  and  Code,  Nos.  1744-1746— Martens,  ii.  §  127— Longuet,  §§  134-135 
— M6rignhac,  iii".  pp.  358-360 — Pillet,  pp.  355-356 — Kriegsbrauch,  p.  38 
— Land  War/are,  §§  221-223 — Emanuel,  Let  Conventions  militairea  dans 
la  Ouerre  continentale  (1904). 

§  215.  Although  the  outbreak  of  war  between  States  Fides 
as  a  rule  brings  non-hostile  intercourse  to  an  end,  ^^27 
necessity  of  circumstances,  convenience,  humanity,  and  «e"'«»«^«- 
other  factors  call,  or  may  call,  some  kinds  of  non-hostile 
relations  of  belligerents  into  existence.    And  it  is  a 
universally  recognised  principle  of  International  Law 
that,  where  such  relations  arise,  belligerents  must  carry 
them  out  in  good  faith.     Fides  etiam  hosti  servanda  is 
a  rule  which  was  adhered  to  in  antiquity,  when  no 
International  Law  in  the  modern  sense  of  the  term 
existed.     But  it  had  then  a  rehgious  and  moral  sanction 
only.    Since  in  modern  times  war  is  not  a  condition 
of  anarchy  and  lawlessness  between  beUigerents,  but 
a  contention  in  many  respects  regulated,  restricted,  and 

30S 


304       NON-HOSTILE   RELATIONS   OF  BELLIGERENTS  ^ 

modified  by  law,  it  is  obvious  that,  where  non-hostile    I 

relations  between  belUgerents  occur,  they  are  protected 

by   law.     Fides   etiain  hosti  servanda  is,   therefore,   a 

principle  which  nowadays  enjoys  a  legal  as  well  as  a 

rehgious  and  moral  sanction. 

Different       §  216.  As  through  the  outbreak  of  war  all  diplomatic  ^ 

Kinds  of   jj^^gjcQ^j-se  and  other  non-hostile  relations  come  to  an 

Hostile     Q^A    i^  js  obvious  that  non-hostile  relations  between 

Relations.  .    .  •   i  r  •    i         i  p 

belHgerents  must  ongmate,  either  irom  special  rules  oi 
International  Law,  or  from  special  agreements  between 
the  belhgerents. 

No  special  rules  of  International  Law  demanding  non- 
hostile  relations  between  belhgerents  existed  in  former 
times  ;  but  of  late  a  few  rules  of  this  kind  have  arisen. 
Thus,  for  instance,  release  on  parole  ^  of  prisoners  of  war 
creates  an  obhgation  on  the  part  of  the  enemy  not  to 
re-admit  them  into  the  forces  while  the  war  lasts.  To 
give  another  example,  by  Article  4  of  the  Geneva  Con- 
vention of  1906,  and  Article  14  of  the  Hague  Eegulations 
— see  also  Article  17  of  Hague  Convention  x. — it  is  the 
duty  of  either  belMgerent  to  return  to  the  enemy,  through 
his  prisoners  of  war  bureau,  all  objects  of  personal  use, 
letters,  jewellery,  and  the  hke  found  on  the  battlefield 
or  left  by  those  who  died  in  hospital.^  Non-hostile 
relations  of  this  kind,  however,  need  not  be  considered 
in  this  chapter,  since  they  have  already  been  discussed. 

Non-hostile  relations  may  also  originate  from  special 
agreements  between  belhgerents  (so-called  commercia 
belli),  concluded  either  in  time  of  peace  for  the  purpose 
of  creating  certain  non-hostile  relations  in  case  war 
breaks  out,  or  during  a  war.  Such  non-hostile  relations 
are    created    through    passports,    safe-conducts,    safe- 

^  There  is  no  doubt  that  all  direct  number  of  arrangements  were  made 

diplomatic  intercourse  comes  to  an  during  the  World  War  between  the 

end  ;    but    indirect   diplomatic    in-  Allies  and  the  Central  Powers, 

tercourse    may   nevertheless    go    on  »  See  above,  §  129. 
through    the    legations    of    neutral 

Powers.      By    this    means   a    great  '  See  above,  §  144. 


NON-HOSTILE   RELATIONS  IN  GENERAL  305 

guards,  flags  of  truce,  cartels,  suiTender,  capitulations, 
and  armistices,  and  also  by  peace  negotiations.^  Each 
kind  must  be  discussed  separately. 

§  217.  Several  writers  ^  speak  of  the  creation  of  non-  Licences 
hostile   relations   between   belligerents   by   Hmited   or  *^   "^   ^' 
general  licences  to  trade  granted  by  a  belHgerent  to 
enemy  subjects.     It  has  been  explained  above,^  that  it 
is  for  Municipal  Law  to  determine  whether  or  not  through 
the  outbreak  of  war  all  trade  and  the  hke  is  prohibited 
between  the  subjects  of  beUigerents.     If  the  Municipal 
Law  of  one  or  both  beUigerents  does  contain  such  a 
prohibition,  it  is  of  course  within  his  or  their  discretion 
to  grant  exceptional  hcences  to  trade  to  their  own  or 
the  other  belligerent's  subjects,  and  such  licences  natur- 
ally include  certain  privileges.     Thus,  for  instance,  if 
a  belhgerent  allows  enemy  subjects  to  trade  with  his 
own  subjects,   enemy  merchantmen  engaged  in  such 
trade  are  exempt  from  capture  and  appropriation  by 
him.     Yet  it  is  not  International  Law  which  creates 
this  exemption,  but  the  hcence,  granted  by  the  belli- 
gerent and  revocable  at  any  moment ;    and  no  non- 
hostile  international  relations  between  the  belhgerents 
themselves  originate  from  such  licences.     The  matter 
would  be  different  if,  either  before  or  in  the  course  of 
a  war,  the  belhgerents  agreed  to  allow  certain  trade 
between  their  subjects  during  war ;    but  non-hostile 
relations  originating  from  such  an  agreement  would 
not  be  relations  arising  from  a  licence  to  trade,  but 
from  a  cartel.^ 

^  See  below,  §  267.  iii.  No.   1500  ;    Pradier-Foder^,  vii. 

-  See,  for  instance.   Hall,  §  196 ;  No.  2937. 
Halleck,  ii.  pp.  371-388  :  Lawrence,  s  q  mi 

§214:  Manning,  p.   168:  Taylor,  §  *  ^"^• 

512  ;    Wheaton,  §§  409-410  ;   Fiore,  *  See  below,  §  224, 


VOL.  II. 


306       NON-HOSTILE   RELATIONS   OF  BELLIGERENTS 


II 

PASSPORTS,    SAFE-CONDUCTS,    SAFEGUARDS 

Grotius,  iii.  c.  21,  §§  14-22— Vattel,  iii.  §§  265-277— Hall,  §§  191,  195— 
Lawrence,  §  213— Phillimore,  iii.  §§  98-102— Hershey,  p.  400,  n.  68— 
Halleck,  ii.  pp.  358-361— Taylor,  §  511— Wheaton,  §  408— Moore,  vii. 
§§  1158-1159— Bluntschli,  §§  675-678— Heffter,  §  142— Liieder  in  ^oZ<- 
zendorff,  iv.  pp.  525-529— Ullmann,  §  185— Bonfils,  Nos.  1246-1247— 
Despagnet,  Nos.  558-561— Pradier-Fod6r6,  vii.  Nos.  2884,  2932-2938— 
Nys,  iii.  pp.  477-478— Calvo,  iv.  §§  2413-2418— Fiore,  iii.  No.  1499,  and 
Code,  Nos.  1765-1772— Longuet,  §§  142-144— M^rignhac,  iii".  pp.  384- 
386— Pillet,  pp.  3o9-3m—Kriegsbrauch,  p.  41— Holland,  War,  No.  101 
—Land  Warfare,  §§  326-337. 

Passports      §  218.  Oiie   belligerent   on   occasions   arranges   that 
conducts,  passports  and  safe-conducts  shall  be  given  to  certain 
subjects  of  another. 

A  passport  is  a  written  permission  given  by  a  belH- 
gerent  to  enemy  subjects,  or  others,  allowing  them  to 
travel  within  his  territory,  or  enemy  territory  occupied 
by  him. 

A  safe-conduct  is  a  written  permission  given  by  a 
belligerent  to  enemy  subjects,  or  others,  allowing  them 
to  proceed  to  a  particular  place  for  a  defined  object ; 
for  instance,  to  a  besieged  town  for  conducting  certain 
negotiations,  or  to  enable  them  retm'n  home  across  the 
sea.i  Safe-conducts  may  also  be  given  for  goods,  to 
allow  them  to  be  carried  without  molestation  to  a  certain 
place.  But  a  safe-conduct  given  to  an  individual  does 
not,  unless  it  is  expressly  stated,  cover  goods  which  he 
may  carry  with  him.  Thus  when  in  1915,  dming  the 
World  War,  Captain  von  Papen,  mihtary  attache  to  the 
German  Embassy  at  Washington,  secured  a  safe-conduct 
from  Great  Britain  to  return  home,  his  luggage  was 
searched  at  Falmouth,  and  important  papers,  throwing 

^  Thus  during  the  World  War  in  bassador,     to    the    United    States, 

1915,  Dr.  Dumba,  the  retiring  Aus-  received  safe-conducts  for  returning 

trian  ambassador,  and  in  1917  Count  home  on  neutral  vessels  calling  at 

BernsdorfiF,  the  retiring  German  am-  British  ports. 


I 


PASSPORTS,    SAFE-CONDUCTS,   SAFEGUARDS         307 

light  upon  his  conspiracies  in  the  United  States,  were 
seized. 

Passports  and  safe-conducts  make  the  grantee  in- 
violable so  long,  and  in  so  far,  as  he  comphes  with  the 
I  onditions  specially  imposed  upon  him,  or  made  neces- 
sary by  the  circumstances  of  the  special  case.  They 
are  not  transferable,  and  may  be  granted  for  a  hmited 
or  an  mihmited  period  ;  in  the  former  case  their  validity 
ceases  with  the  expiration  of  the  period.  They  may  be 
withdrawn,  not  only  when  the  grantee  abuses  the  pro- 
tection, but  also  for  mihtary  expediency.  Moreover, 
they  are  only  a  matter  of  International  Law  when 
the  granting  of  them  has  been  arranged  between  the 
beUigerents  or  their  responsible  commanders,  or  betw^een 
beUigerents  and  neutral  Powers.  If  they  are  granted 
without  such  an  arrangement,  unilaterally  on  the  part 
of  one  of  the  belhgerents,  they  fall  outside  the  scope  of 
International  Law.^ 

§  219.  One  beUigerent  sometimes  arranges  to  grant  Safe- 
protection  against  his  forces  to  certain  subjects  or  ^^^  ^' 
property  of  another  belhgerent  in  the  form  of  safeguards, 
of  which  there  are  two  kinds.  One  consists  of  a  written 
order,  given  to  an  enemy  subject  or  left  with  enemy 
property,  addressed  to  the  commander  of  armed  forces 
of  the  grantor,  and  charging  him  with  the  protection 
of  the  individual  or  the  property.  Thereby  he  or  it 
become  inviolable.  The  other  kind  of  safeguard  is 
given  by  detaihng  one  or  more  soldiers  to  accompany 
enemy  subjects,  or  to  guard  the  spot  where  certain 
enemy  property  is,  for  the  purpose  of  protection. 
Soldiers  on  this  duty  are  inviolable  on  the  part  of  the 
other  belhgerent ;  they  must  neither  be  attacked  nor 
made  prisoners,  and  they  must,  on  faUing  into  the  hands 
of  the  enemy,  be  fed,  well  kept,  and  eventually  safely 

*  This  distinction  would  seem  to  be  necessarj',  although  it  is  not  gener- 
ally made. 


308       NON-HOSTILE   RELATIONS   OF  BELLIGERENTS 


sent  back  to  their  corps.  Safeguards,  like  passports  and 
safe-conducts,  are  only  a  matter  of  International  Law 
when  the  granting  of  them  has  been  arranged  by  the 
belligerents,  or  when  they  fall  under  Articles  8  and  9  of 
the  Geneva  Convention  of  1906,^  and  not  otherwise. 


Ill 

FLAGS   OF  TRUCE 

Grotius,  iii.  c.  24,  §  5— Hall,  §  190— Lawrence,  §  211— Westlake,  ii.  p.  91— 
Hershey,  No.  384— Moore,  vii.  §  1157— Phillimore,  iii.  §  115— Halleck,  ii. 
p.  369— Taylor,  §  510— Bluntschli,  §§  681-684— Heffter,  §  141— Lueder 
in  Holtzendorff,  iv.  pp.  421-423— Ullmann,  §  180— Bonfils,  Nos.  1239- 
1245— Despagnet,  Nos.  556-557— Pradier-Fod6r6,  vii.  Nos.  2927-2931— 
Rivier,  ii.  pp.  279-280— Nys,  iii.  pp.  474-476— Calvo,  iv.  §§  2430-2432— 
Fiore,  iii.  No.  1378,  and  Code,  Nos.  1500-1505— Martens,  ii.  §  127— 
Longuet,  §§  136-138— M6rignhac,  iii«.  pp.  361-366— Fillet,  pp.  356-358 
— Zorn,  pp.  195-199— Meurer,  ii.  §§  39-40— Bordwell,  pp.  293,  294— 
Spaight,  pp.  216-231— Kriegshrauch,  pp.  26-29— Holland,  War,  Nos. 
88-Ql—Land  Warfare,  §§  224-255. 

Meaning  §  220.  Certain  circumstances  and  conditions  make  it 
ofTru?e.  Hccessary  or  convenient  for  the  armed  forces  of  belh- 
gerents  to  enter  into  negotiations  for  various  purposes. 
Since  time  immemorial,  a  white  flag  has  been  used  as  a 
symbol  by  an  armed  force  wishing  to  negotiate  with  the 
enemy,  and  always,  and  everywhere,  it  has  been  con- 
sidered a  duty  of  the  enemy  to  respect  this  symbol.  In 
land  warfare  the  flag  of  truce  is  used  in  the  following 
maimer.  2  An  individual — soldier  or  civihan — charged 
with  the  task  of  negotiating  with  the  enemy,  approaches 
the  latter,  either  carrying  the  flag  himself,  or  accom- 
panied by  a  flag-bearer,  and,  often,  also  by  a  drummer, 
a  bugler,  or  a  trumpeter,  and  an  interpreter.  In  sea 
warfare  the  individual  charged  with  the  task  of  negoti- 
ating approaches  the  enemy  in  a  boat  flying  the  white 
flag.     The  Hague  Regulations,  by  Articles  32  to  34, 

^  See  above,  §  121.  *  See  Hague  Regiilations,  Article  32. 


1 


FLAGS   OF  TRUCE  309 

enacted  most  of  the  customary  rules  of  International 
Law  regarding  flags  of  truce  without  adding  any  new 
rule.  These  rules  are  the  same  for  land  warfare  as 
for  sea  warfare,  although  their  vahdity  for  land  warfare 
is  now  grounded  on  the  Hague  Regulations,  whereas 
their  validity  for  sea  warfare  is  still  based  on  custom 
only. 

§  221.  As  a  commander  of  an  armed  force  is  not,  Treat- 
according  to  Article  33  of  the  Hague  Regulations,  com-  unadmit- 
pelled  to  receive  a  bearer  of  a  flag  of  truce,  a  flas-bearer  ^^'^  ^^i^- 
who  makes  his  appearance  may  at  once  be  signalled  to 
withdraw.  Yet  even  then  he  is  inviolable  from  the 
time  he  displays  the  flag  to  the  end  of  the  time  necessary 
for  withdrawal.  During  this  time  he  may  neither  be 
intentionally  attacked  nor  made  prisoner.  However, 
an  armed  force  in  battle  is  not  obhged  to  stop  its  mihtary 
operations  on  account  of  the  approach  of  an  enemy  flag- 
bearer  who  has  been  signalled  to  withdraw.  Although 
he  may  not  be  fired  upon  intentionally,  should  he  be 
wounded  or  killed  accidentally,  during  the  battle,  no 
responsibihty  or  moral  blame  would  rest  upon  the 
belhgerent  concerned.  In  former  times  the  commander 
of  an  armed  force  could  inform  the  enemy  that,  within 
a  certain  defined  or  indefinite  period,  he  would  under 
no  circumstances  or  conditions  receive  a  flag-bearer ; 
and  if,  in  spite  of  such  notice,  a  flag-bearer  approached, 
he  did  not  enjoy  any  privilege,  and  could  be  attacked 
and  made  prisoner  hke  ^ny  other  member  of  the  enemy 
forces.  But  this  rule  is  now  obsolete,  and  its  place  is 
taken  by  the  rule  that  a  commander  must  never,  except 
in  a  case  of  reprisals,  declare  beforehand,  even  only  for 
a  specified  period,  that  he  will  not  receive  a  bearer  of 
a  flag  of  truce. ^ 

*  This  becomes  quite  apparent  N.  R.  O. ,  2nd  Ser.  xxvi.  p.  465 ; 
from  the  discussions  at  the  First  Land  War/are,  %  234 ;  Spaight,  pp. 
Hague    Conference ;     see    Martens,       221-223. 


310       NON-HOSTILE   EELATIONS   OF  BELLIGERENTS 

Treat-  §  222.  Beareis  of  flags  of  truce  and  their  parties,  when 

Admitted  admitted  by  the  other  side,  must  be  granted  the  pri\dlege 
Flag-        of  in\dolabiHty.     They  may  neither  be  attacked  nor 

bearers.  _  ^  j  j 

taken  prisoners,  and  they  must  be  allowed  to  return 
safely  in  due  time  to  their  own  hnes.     But  they  need  not 
be  allowed  to  acquire  information  about  the  receiving 
forces,  and  may,  therefore,  be  bhndfolded  by  them, 
or  be  conducted  by  roundabout  ways,  or  be  prevented 
from   entering   into    conmiunication   with   individuals 
other  than  those  who  confer  officially  with  them,  and 
they  may  even  temporarily  be  prevented  from  returning, 
until  a  certain  mihtary  operation  of  which  they  have 
obtained  information  is  carried  out.     Article  33  of  the 
Hague  Regulations  specifically  enacts  that  a  commander 
to  whom  a  flag  of  truce  is  sent '  may  take  all  steps  neces- 
sary to  prevent  the  envoy  taking  advantage  of  his  mission 
to  obtain  information.'     Bearers  of  flags  of  truce  are 
not,   however,   prevented  from  reporting  information 
they  have  gained  by  observation  while  passing  through 
the  enemy  hnes  and  in   communicating  with  enemy 
individuals.     But  they  are  not  allowed  to  sketch  maps 
of  defences  and  positions,  to  gather  information  secretly 
and  surreptitiously,  to  provoke  or  to  commit  treacher- 
ous acts,  and  the  like.     If  they  do,  they  may  be  court- 
marti ailed.    Articles  33  and  34  of  the  Hague  Regula- 
tions expressly  enact  that  a  flag-bearer  may  be  tem- 
porarily detained  in  case  he  abuses  his  mission  for  the 
purpose  of  obtaining  information,  and  that  he  loses  all 
privileges  of  inviolabihty  '  if  it  is  proved  beyond  doubt 
that  he  has  taken  advantage  of  his  privileged  position 
to  provoke  or  commit  an  act  of  treachery.'     Bearers  of 
white  flags  and  their  party  must  carry  ^  some  authorisa- 
tion with  them,  to  show  that  they  are  charged  with  the 

*  Article  32  of  the  Hague  Regula-  is  *  authorised  '  by  one  of  the  belli- 
tions  oonfirms  this  customary  rule  gerents  to  enter  into  communication 
by  speaking   of   an  individual  who       with  the  other. 


FLAGS    OF   TRUCE  311 

task  of  entering  into  negotiations  (Article  32)  ;  other- 
wise they  may  be  detained  as  prisoners,  since  it 
is  his  mission,  and  not  the  white  flag  itself,  which 
protects  the  flag-bearer.  This  mission  protects  every 
one  w^io  is  charged  with  it,  whatever  his  rank  and 
whether  a  civihan  or  a  soldier ;  but  it  does  not 
protect  a  deserter.  A  deserter  may  be  detained, 
coiirt-martialled,  and  punished,  notice  being  given  to 
the  army  sending  him  of  the  reason  of  his  punish- 
ment.^ 

§  223.  Different  from  abuse   of   his   mission   by   an  Abuse  of 
authorised  flag-bearer  is  abuse  of  the  flag  of  truce  itself,  Truce^ 
which  may  take  one  of  two  different  forms  : — 

(1)  The  force  which  sends  an  authorised  flag-bearer 
to  the  enemy  has  to  take  up  a  corresponding  attitude, 
the  ranks  which  the  flag-bearer  leaves  being  obhged  to 
halt  and  to  cease  fire.  It  constitutes  an  abuse  of  the 
flag  of  truce  if  it  intentionally  fails  to  do  so.  The 
case  is  even  worse  when  a  flag-bearer  is  intentionally 
sent  on  a  feigned  mission  in  order  that"  mihtary 
operations  may  be  carried  out  under  cover  of  the 
protection  due  from  the  enemy  to  the  flag-bearer  and 
his  party. 

A  case  of  this  kind  is  related  in  Halleck.^  '  On  July 
12, 1882,  while  the  British  fleet  was  lying  off  Alexandria, 
in  support  of  the  authority  of  the  Khedive  of  Egypt, 
and  the  rebels  under  Ai'abi  Pasha  were  being  driven  to 
great  straits,  a  rebel  boat,  carrpng  a  white  flag  of  truce, 
was  observed  approaching  H.M.S.  Invindhle  from  the 
harbour,  whereupon  H.M.  ships  Temeraire  and  Inflexible, 
which  had  just  commenced  fiii'ing,  were  ordered  to  sus- 
pend fire.  So  soon  as  the  firing  ceased,  the  boat,  instead 
of  going  to  the  Invincible,  returned  to  the  harbour.  A 
flag  of  truce  was  simultaneously  hoisted  by  the  rebels 

*  See  Hall,  §  190.  denies  that  this  was  a  case  of  abuse 

*  ii.    p.    315.      Spaight,    p.    229,       of  the  white  flag. 


312        NON-HOSTILE  RELATIONS  OF  BELLIGERENTS 

on  the  Ras-el-Tin  fort.  These  deceits  gave  the  rebels 
time  to  leave  the  works  and  to  retire  through  the  town, 
abandoning  the  forts,  and  withdrawing  the  whole  of  their 
garrison  under  the  flag  of  truce/ 

(2)  A  white  flag  is  liable  to  be  used  to  make  the  enemy 
beheve  that  a  flag  of  truce  is  about  to  be  sent,  although 
it  is  not  sent,  so  that  operations  may  be  carried  out 
under  the  protection  granted  by  the  enemy  to  this 
pretended  flag  of  truce. 

Both  forms  of  abuse  are  gross  perfidy,  and  may  be 
met  with  reprisals,  or  with  punishment  of  the  offenders 
in  case  they  fall  into  the  hands  of  the  enemy. 


IV 

CARTELS 

Grotius,  iii.  c.  21,  §§  23-30— Vattel,  iii.  §§  278-286— Hall,  §  193— Lawrence, 
§  212— Westlake,  ii.  p.  162— Phillimore,  iii.  §§  111-112— Halleck,  ii.  pp. 
361-363— Taylor,  §  509— Bluntschli,  §§  679-680— Heffter,  §  142— Lueder 
in  Holtzendorff,  iv.  pp.  525-529— UUmann,  §  185 — Bonfils,  Nos.  827  and 
1280— Despagnet,  No.  658— Pradier-Fod^r^,  vii.  Nos.  2832-2837,  2888 
— Rivier,  ii.  p.  360— Nys,  iii.  pp.  484-487— Calvo,  iv.  §§  2419-2421— 
Longuet,  §§  140,  141— Fillet,  pp.  358,  ^5^—Kriegshrauch,  p.  38— 
Holland,  War,  No.  100,  and  Prize  Law,  §§  32-35 — Land  Warfare, 
§§  338-339. 

Definition     §  224.  Cartels  are  conventions  between  belhgerents 

and  Pur 
pose  of 


concluded  for  the  purpose  of  permitting  certain  kinds 
Cartels,  of  nou-hostilc  intercourse  between  them  which  would 
otherwise  be  prevented  by  war.  Cartels  may  be  con- 
cluded during  peace  in  anticipation  of  war,  or  during 
a  war,  and  they  may  provide  for  numerous  purposes. 
Thus,  communication  by  post,  telegi'aph,  telephone,  and 
railway,  which  would  otherwise  not  take  place,  can  be 
arranged  by  cartels,  as  can  also  the  exchange  of  prisoners, 
or  certain  treatment  for  the  wounded,  and  the  hke. 
Thus,    further,    intercourse    between    their    subjects 


CARTELS  313 

through  trade  ^  can,  either  with  or  without  hmits,  be 
agreed  upon  by  belhgerents.  All  rights  and  duties 
originating  from  cartels  must  be  compHed  with  in  the 
same  manner  and  good  faith  as  rights  and  duties  arising 
from  other  treaties. 

§  225.  Cartel  ships  ^  are  vessels  of  belhgerents  which  Cartel 
are  commissioned  for  the  carriage  by  sea  of  exchanged  '^^' 
prisoners  from  the  enemy  country  to  their  own  country, 
or  for  the  carriage  of  official  communications  to  and 
from  the  enemy.  Custom  has  sanctioned  the  following 
rules  regarding  cartel  ships  for  the  purpose  of  securing 
protection  for  them  and  also  securing  their  ■  exclusive 
employment  as  a  means  for  the  exchange  of  prisoners  : 
Cartel  ships  must  not  do  any  trade,  or  carry  any  cargo 
or  despatches ;  ^  they  are,  in  particular,  not  allowed  to 
carry  ammunition  or  instruments  of  war,  except  one 
gun  for  firing  signals.  They  have  to  be  furnished  with 
a  proper  document  declaring  that  they  are  commis- 
sioned as  cartel  ships.  They  are  under  the  protection 
of  both  belhgerents,  and  may  neither  be  seized  nor 
appropriated.  They  enjoy  this  protection,  not  only 
when  actually  carrying  exchanged  prisoners  or  official 
conununications,  but  also  on  their  way  home  after  such 
carriage  and  on  their  way  to  fetch  prisoners  or  official 
communications.^  They  lose  it  at  once,  and  may  con- 
sequently be  seized  and  be  appropriated,  in  case  they 
do  not  comply,  either  with  the  general  rules  regarding 
cartel  ships,  or  with  the  special  conditions  imposed  upon 
them. 

^  See  above,  §  217.     But  arrange-  *  The  La  Eosina,  (1800)  2C.  Rob. 

ments  for  granting  passports,  safe-  372;    The   Venus,  (1803)  4  C.    Rob. 

conducts,  and  safeguards — see  above,  355. 
§§  218  and  219 — are  not  a  matter  of 

cartels.  ♦  The  Daifje,  (1800)  3  C.  Rob.  139 ; 

*  See  above,  §  190.  The  La  Gloire,  (1804)  5  C.  Rob.  192. 


314       NON-HOSTILE   RELATIONS   OF  BELLIGERENTS 

V 

CAPITULATIONS   AND   SIMPLE    SURRENDER 

Grotius,  iii.  c.  22,  §  9— Vattel,  iii.  §§  261-264— Hall,  §  194— Lawrence,  §  215 
— Westlake,  ii.  p.  91— Phillimore,  iii.  §§  122-126— Halleck,  ii.  pp. 
354-357— Taylor,  §§  514-516— Wheaton,  §  405— Moore,  vii.  §  1160— 
Bluntschli,  §§  697-699— Heffter,  §  142— Lueder  in  Holtzendorff,  iv.  p. 
627— Ullmann,  §  185— Bonfils,  Nos.  1259-1267— Despagnet,  No.  562— 
Pradier-Fod6r6,  vii.  Nos.  2917-2926— Rivier,  ii.  pp.  361-362— Nys,  iii. 
pp.  487-491— Calvo,  iv.  §§  2450-2452— Fiore,  iii.  Nos.  1495-1497,  and  Code, 
Nos.  1756-1763— Martens,  ii.  §  127— Longuet,  §§  151-154— M6rignhac, 
iii".  pp.  366-373— Pillet,  pp.  360-364— Bordwell,  p.  294— Meurer,  ii.  §§ 
41-42— Spaight,  pp.  2i9 -259— Kriegshrauch,  pp.  38-41— Holland,  War, 
No.  92— Land  Warfare,  §§  301-325. 

Character  §  226.  Capitulations  are  conventions  between  armed 
Pu'rpose  forces  of  belligerents  stipulating  the  terms  of  surrender 
of  Capitu-  qI  fortresses  and  other  defended  places,  or  of  men-of- 

lations,  m  .  ^  t      • 

contra-     War,  or  01  troops.     It  IS,  thereiore,  necessary  to  distm- 

tion  to      guish  between  a  simple  and  a  stipulated  surrender.     If 

Simple      Qy^Q  Qj.  niore  soldiers  lay  down  their  arms  and  surrender, 

render,      or  if  a  fortrcss  or  a  man-of-war   surrenders  without 

making  any  terms  whatever,  there  is  no  capitulation, 

for  a  capitulation  is  a  convention  stipulating  special 

terms  of  surrender. 

Nevertheless,  simple  surrender,  though  not  a  capitu- 
lation, is  a  convention,  for  it  is  an  agreement  for  the 
cessation  of  hostihties  whereby  the  vanquished  party 
agrees  that  his  forces  shall  be  taken  into  captivity,  and 
in  the  case  of  the  surrender  of  a  certain  place,  that  he 
will  give  up  possession  without  resistance,  and  in  return 
the  victor  agrees  to  give  quarter. 

Capitulations  are  mihtary  conventions  only  and 
exclusively  ;  they  must  not,  therefore,  contain  arrange- 
ments other  than  those  of  a  local  and  mihtary  character 
concerning  the  surrendering  forces,  places,  or  ships. 
If  they  do  contain  such  arrangements,  the  latter  are  not 
vahd,  unless  they  are  ratified  by  the  pohtical  authorities 


CAPITULATIONS   AND   SIMPLE   SURRENDER  315 

of  both  belligerents.^  The  surrender  of  a  certain  place 
or  force  may,  of  course,  be  arranged  by  some  convention 
containing  other  than  mihtary  stipulations,  but  then 
such  surrender  would  not  originate  from  a  capitulation. 
Just  as  the  character  of  capitulations  is  merely  military, 
so  is  their  purpose — the  abandonment  of  a  hopeless 
struggle  and  of  resistance  which  would  only  involve 
useless  loss  of  life  on  the  part  of  a  hopelessly  beset  force. 
Therefore,  whatever  may  be  the  indirect  consequences 
of  a  capitulation,  its  direct  consequences  have  nothing 
to  do  with  the  war  at  large,  but  are  local  only,  and  con- 
cern the  surrendering  force  exclusively. 

§  227.  Unless  otherwise  expressly  provided,  a  capitu-  Contenta 
lation  is  concluded  under  the  obvious  condition  that  the  °atioS!  " 
surrendering  forces  become  prisoners  of  war,  and  that 
all  war  material  and  other  pubhc  property  in  their 
possession,  or  within  the  surrendering  place  or  ship, 
are  surrendered  in  the  condition  in  which  they  were  at 
the  time  when  the  capitulation  was  signed.  Nothing 
prevents  forces  fearing  surrender  from  destroying  their 
provisions,  munitions,  arms  and  other  instruments  of 
war  which,  when  falHng  into  the  hands  of  the  enemy, 
would  be  useful  to  him.  Again,  nothing  prevents  a 
commander,  even  after  negotiations  regarding  surrender 
have  begun,  from  destroj^ng  such  articles.  But  when 
once  a  capitulation  has  been  signed,^  such  destruction 

^  See  Phillimore,  iii.  §  123,  who  General  Stoessel,  the  commander  of 

discusses  the  promise  of  Lord  William  Port  Arthur,  had  fortifications  blown 

Bentinck  to  Genoa,  in  1814,  regard-  up  and  vessels  sunk,  during  negotia- 

ing    its    independence,    which    was  tions  for  surrender,  but  before  the 

disowned  bythe  British  Government.  capitulation  was   signed,   the  press 

Phillimore  himself  disapproves  of  the  undeservedly  accused  him  of  perfidy, 

attitude  of  Great  Britain,  and  so  do  U.S.   Naval  War  Code,  Article  52, 

some     foreign     publicists,     as,     for  enacted  the  right  principle  :    '  after 

instance,  Despagnet  (No.  562) ;  but  agreeing  upon  or  $igning  a  capitula- 

the  rule  that  capitulations  are  mili-  tion,   the   capitulator   must   neither 

tary  conventions,  and  that,  therefore,  injure     nor     destroy     the     vessels, 

such  stipulations  are  not  valid  as  are  property,  or  stores  in  his  possession 

not  of  a  local  military  character,  is  that  he  is  to  deliver  up,  unless  the 

indubitable.  right  to  do  so  is  expressly  reserved 

*  When,      during      the      Russo-  to  him  in  the  agreement  or  capitula- 

Japanese    War,    in    January    1905,  tion.' 


316      NON-HOSTILE   RELATIONS    OF   BELLIGERENTS 

is  no  longer  lawful,  and,  if  carried  out,  constitutes 
perfidy,  which  may  be  punished  by  the  other  party  as 
a  war  crime. 

But  special  conditions  may  be  agreed  upon  between 
the  forces  concerned,  and  they  must  then  be  faithfully 
adhered  to  by  both  parties.  The  only  rule  which 
Article  35  of  the  Hague  Kegulations  enacts  regarding 
capitulations  is  that  they  must  be  in  accordance  with 
the  demands  of  miHtary  honour,  and,  when  once  settled, 
must  be  scrupulously  observed.  Among  possible  con- 
ditions may  be  one  that  the  convention  shall  be  vaHd 
only  if  within  a  certain  period  rehef  troops  are  not 
approaching,  or  one  that  the  surrendering  forces  shall 
not  in  every  respect  be  treated  like  ordinary  prisoners  of 
war.  Thus  it  may  be  stipulated  that  the  officers,  or 
even  the  soldiers,  shall  be  released  on  parole,  and  that 
officers  remaining  prisoners  shall  retain  their  swords. 
Whether  or  not  a  belligerent  will  grant,  or  even  offer, 
such  specially  favourable  conditions  depends  upon  the 
importance  of  the  force,  place,  or  ship  to  be  surrendered, 
and  upon  the  bravery  of  the  surrendering  force.  There 
are  even  instances  ^  of  capitulations  which  stipulated 
that  the  surrendering  forces  should  leave  the  place  with 
full  honours,  carrying  their  arms  and  baggage  away,  and 
joining  their  own  army,  unmolested  by  the  enemy 
through  whose  fines  they  had  to  march.^ 
Form  of  §  228.  No  rulc  of  International  Law  exists  regarding 
Sonf  "and  ^^^  forms  of  capitulatious,  which  may,  therefore,  be  con- 
of  Simple  cludcd  either  orally  or  in  writing.     But  they  are  usually 

render. 

^  During  the  Franco-German  War  confiscated     was     decided     in     the 

the    Germans    granted    these    most  negative  by  Sir  W.  Scott  in  The  Ships 

favourable  conditions  to  the  French  taken  at  Genoa,  (1803)  4  C.  Rob.  388; 

forces  that  surrendered  Belfort  on  but  it  would  seem  that  in  Herrera  v. 

February  15,  1871.  United  States,   and   Diaz  v.    United 

2  The    question    whether    enemy  States,  (1912)222  U.S.  558,  574,  the 

merchantmen    belonging   to    enemy  Supreme  Court  of  the  United  States 

subjects    residing  in  a  capitulating  has    taken   a   different    view.       See 

town  and  found  in  the  harbours  there  Kingsbury  in  A.J.,  vi.   (1912),   pp. 

after  capitulation  can  be  seized  and  650-658,  and  above,  §  184. 


I 


CAPITULATIONS   AND   SIMPLE   SURRENDER  317 

concluded  in  writing.  Negotiations  for  capitulation, 
from  whichever  side  they  emanate,  are  usually  sent  under 
a  flag  of  truce.  On  the  other  hand,  a  force  which  is 
ready  to  surrender  without  special  conditions  of  sur- 
render, i.e.  without  a  capitulation,  can  indicate  their 
intention  by  hoisting  a  white  flag  as  a  signal  that  they 
abandon  all  resistance.  The  question  whether  the 
enemy  must  at  once  cease  filing  and  accept  the  surrender, 
is  to  be  answered  in  the  affirmative,  provided  that  he  is 
certain  that  the  white  flag  was  hoisted  by  order,  or  with 
the  authority,  of  the  commander  of  the  force.  As, 
however,  such  hoisting  may  well  have  taken  place  with- 
out the  authority  of  the  commander  and  may,  therefore, 
be  disowned  by  him,  no  duty  exists  for  the  enemy  to 
cease  his  attack  until  he  is  convinced  that  the  white 
flag  really  indicates  the  intention  of  the  commander  to 
surrender. 

§  229.  The  competence  to  conclude  capitulations  is  Compe- 
vested  in  the  commanders  of  the  forces  opposing  each  conclude 
other.  .  Capitulations  entered  into  by  unauthorised  Capituia- 
subordinate  officers  may,  therefore,  be  disowned  by 
the  commander  without  breach  of  faith.  As  regards 
the  special  conditions  of  capitulations,  it  must  be  par- 
ticularly noted  that  the  competence  of  a  commander  to 
grant  them  is  hmited  ^  to  those  the  fulfilment  of  which 
depends  entirely  upon  the  forces  under  his  command. 
If  he  grants  conditions  against  his  instructions,  or  con- 
ditions the  fulfilment  of  which  depends  upon  forces 
other  than  his  own,  and  upon  superior  officers,  his 
superior  officer  may  disown  them.  The  capitulation 
in  El  Arish  -  on  January  24,  1800,  arranged  between  the 
French  General  Kleber  and  the  Turkish  Grand  Vizier, 
and  approved  by  the  British  Admiral,  Sir  Sidney  Smith, 
illustrates  this.    As  General  Kleber,  who  was  command- 

^  See  U.S.  Naval  War  Code,  Article  51. 
*  Martens,  R.,  vii.  p.  1. 


318       NON-HOSTILE   RELATIONS   OF  BELLIGERENTS 

ing  the  French  army  in  Egypt,  thought  that  he  could 
not  remain  in  Egypt,  he  proposed  surrender  under  the 
condition  that  his  army  should  be  safely  transported  to 
France,  carrying  away  their  arms  and  baggage.  The 
Grand  Vizier  accepted  these  conditions.  The  British 
Admiral,  Sir  Sidney  Smith,  who  approved  of  them,  was 
the  local  commander  on  the  coast  of  Egypt,  but  was 
an  officer  inferior  to  Lord  Keith,  the  commander  of 
the  British  Mediterranean  fleet.  Lord  Keith  had,  on 
January  8,  1800,  received  secret  orders,  dated  December 
15,  1799,  from  the  British  Government  instructing  him 
not  to  agree  to  any  capitulation  which  stipulated  the 
free  return  of  Kleber's  army  to  France.  Sir  Sidney 
Smith  did  not,  however,  receive  instructions  based  on 
these  orders  until  February  22,  1800,  and,  therefore, 
when  he  approved  of  the  capitulation  of  El  Arish  in 
January,  was  not  aware  that  he  acted  against  orders 
of  the  British  Government.^  Lord  Keith,  after  having 
received  the  above  orders  on  January  8,  1800,  wrote  at 
once  to  General  Kleber,  pointing  out  that  he  was  not 
allowed  to  grant  the  return  of  the  French  army  to 
France.^  On  the  other  hand,  the  British  Government, 
after  having  been  informed  that  Sir  Sidney  Smith  had 
approved  of  the  return  of  the  French  army,  sent,  on 
March  28,  1800,  fresh  orders  ^  to  Lord  Keith,  received 
by  him  at  the  end  of  April,  advising  him,  although  Sir 
Sidney  Smith  had  exceeded  his  competence,  to  allow 
the  capitulation  to  be  carried  out,  and  the  French  army 
to  be  safely  transported  to  France.  Meanwhile,  how- 
ever, circumstances  had  entirely  changed.  When 
General  Kleber  had  on  March  17,  1800,  received  Lord 
Keith's  letter  of  January  8,  he  addressed  a  proclamation  ^ 
to  his  troops  embodying  Lord  Keith's  letter,  and  asking 
them   to   prepare   themselves   for   battle.     He   began 

^  Martens,  R.,  vii.  pp.  8,  9.  '  Martens,  R.,  vii.  p.  11. 

^  Martens,  R.,  vii.  p.  10.  *  Martens,  R.,  vii.  p.  15. 


CAPITULATIONS   AND   SIMPLE   SURRENDER  319 

hostilities  again  on  March  20,  but  was  assassinated  on 
June  14,  and  General  Menou  took  over  the  command. 
It  was  Menou  who  received,  on  June  20,  1800,  informa- 
tion of  the  changed  attitude  of  the  British  Government 
regarding  the  capitulation  of  El  Arish.  HostiHties 
having  been  renewed  as  far  back  as  March,  General 
Menou  refused  ^  to  consent  to  the  carrying  out  of  the 
capitulation,  and  continued  hostilities. 

It  is  obvious  that  Sir  Sidney  Smith,  in  approving  the 
capitulation,  accepted  a  condition  which  did  not  depend 
entirely  upon  himself  and  the  forces  under  him,  but 
upon  Lord  Keith  and  his  fleet.  Lord  Keith  as  well  as 
the  British  Government  could  have  lawfully  disowned 
it.  That  the  British  Government  did  not  do  so,  but 
was  ready  to  ratify  Sir  Sidney  Smith's  approval,  was 
because  it  did  not  want  to  disavow  the  promises  of  Sir 
Sidney  Smith,  who  was  not  at  the  time  aware  of  the 
orders  of  his  Government  to  Lord  Keith.  On  the  other 
hand,  the  French  generals  were  not  wrong  in  resuming 
hostihties  after  having  received  Lord  Keith's  first 
information,  as  thereby  the  capitulation  fell  to  the 
gi'ound. 

§  230.  That     capitulations     must     be     scrupulously  violation 
adhered  to  is  an  old  customary  rule,  since  enacted  by  °atSn^'^" 
Article  35  of  the  Hague  Regulations.     Any  act  contrary  ^'^  o^ 
to   a   capitulation   would   constitute   an   international  Sur- 
dehnquency  if  ordered  by  a  belhgerent  Government,  ^^^  *'"' 
and  a  war  crime  if  committed  without  such  order.     Such 
violation  may  be  met  with  reprisals  or  punishment  of 
the  offenders  as  war  criminals. 

When  there  is  no  capitulation,  but  a  simple  surrender, 
it  is  a  duty  of  the  surrendering  force  to  stop  firing  as 
soon  as  the  white  flag  has  been  hoisted,  and  the  enemy 
is  approaching  to  take  possession.  Those  members  of 
the  surrendering  force  who  continue  to  fire  lose  their 

^  Martens,  ff.,  vii.  p.  16. 


320       NON-HOSTILE   RELATIONS   OF  BELLIGERENTS 

claim  to  receive  quarter,^  and  may  therefore  be  killed 
on  the  spot.  Or,  if  taken  prisoners,  they  may  be 
punished  as  war  criminals. 

VI 

ARMISTICES 

Grotius,  iii.  c.  21,  §§  1-13,  c.  22,  §  8— Pufendorf,  viii.  c.  7,  §§  3-12— Vattel, 
iii.  §§  233-260— Hall,  §  192— Lawrence,  §  216— Westlake,  p.  92— Philli- 
more,  iii.  §§  116-121— Halleck,  ii.  pp.  346-354— Hershey,  No.  386— 
Moore,  vii.  §  1162— Taylor,  §§  513  and  516— Wheaton,  §§  400-404— 
Blantschli,  §§  688-696— Heffter,  §  142— Lueder  in  Holtzendorff,  iv.  pp. 
531.544_Ullmann,  §  186— Bonfils,  Nos.  1248-1258— Despagnet,  Nos. 
563-566— Pradier-Fod6r6,  vii.  Nos.  2889-2916— Rivier,  ii.  pp.  362-368— 
Nys,  iii.  pp.  491-494— Calvo,  iv.  §§  2433-2449— Fiore,  iii.  Nos.  1484- 
1494,  and  Code,  Nos.  1773-1786— Martens,  ii.  §  127— Longuet,  §§  145- 
149— M^rignhac,  iii'.  pp.  373-384— Fillet,  pp.  364-370— Zorn,  pp.  201- 
206— Bordwell,  pp.  294-296— Meurer,  ii.  §§  43-44— Spaight,  pp.  232- 
24:8  —  Kriegsbrauch,  pp.  41-44  — Holland,  War,  Nos.  93-99  — i^and 
Warfare,  §§  256-300. 

Character  §  231.  Armisticcs  or  truces,  in  the  wider  sense  of  the 
of^iSS^term,  are  all  agreements  between  belhgerent  forces 
tices.  fQj.  a  temporary  cessation  of  hostihties.  They  are  in 
no  wise  to  be  compared  with  peace,  and  ought  not  to 
be  called  temporary  peace,  because  the  condition  of 
w^ar  remains  between  the  belhgerents  themselves,  and 
between  the  belhgerents  and  neutrals,  on  all  points 
beyond  the  mere  cessation  of  hostihties.  In  spite  of 
such  cessation  the  right  of  visit  and  search  over  neutral 
merchantmen  therefore  remains  intact,  as  does  hkewise 
the  right  to  capture  neutral  vessels  attempting  to  break 
a  blockade,  and  the  right  to  seize  contraband  of  war. 
Although  all  armistices  are  essentially  ahke  in  so  far 
as  they  consist  of  cessations  of  hostihties,  three  different 
kinds  must  be  distinguished — namely,  (1)  suspensions 
of  arms,  (2)  general  armistices,  and  (3)  partial  armistices.^ 

^  See  above,  §  109.  made  by  several  publicists.    Holland, 

*  Although,  as  will  be  seen  from  War,  No.  93,  even  says :  '  There  is 

the  following  sections,  this  distinc-  no  difference  of  meaning,  according 

tion  is  absolutely  necessary,  it  is  not  to  British  usage  at  least,  between  a 


I 


ARMISTICES  321 

The  Hague  Regulations  deal  with  armistices  in  Articles 
3G  to  41  but  very  incompletely,  so  that  the  gaps  must  be 
filled  from  old  customary  rules. 

§  232.  Suspensions  of  arms,  in  contradistinction  to  Suspen- 
armistices  in  the  narrower  sense  of  the  term,  are  cessa-  Arma!" 
I  ions  of  hostiUties  agreed  upon  between  mihtary  or  naval 
forces,  large  or  small,  for  a  very  short  time,  and  regarding 
momentary  and  local  military  purposes  only.  Such 
purposes  may  be — collection  of  the  wounded  ;  burial 
of  the  dead  ;  negotiations  regarding  the  surrender  or 
evacuation  of  a  defended  place,  or  for  an  armistice  in 
the  narrower  sense  of  the  term ;  or  to  enable  a  com- 
mander to  ask  for  and  receive  instructions  from  a 
superior  authority,^  and  the  like.  Suspensions  of  arms 
have  nothing  to  do  with  pohtical  purposes,  or  with  the 
war  generally,  since  they  are  of  momentary  and  local 
importance  only.  They  concern  exclusively  those 
forces,  and  that  spot,  which  are  the  object  of  the  sus- 
pension of  arms.  The  Hague  Regulations  do  not 
specially  mention  suspensions  of  arms,  since  Article  37 
speaks  of  local  armistices  only,  apparently  including 
suspensions  of  arms  among  local  armistices. 

§  233.  A  general  armistice  is  a  cessation  of  hostih-  General 
ties  which,  in  contradistinction  to  suspensions  of  arms  tie^.* 
with  their  momentary   and    local    mihtary    purposes, 
is  agreed  upon  between  belhgerents  for  the  whole  of 
their  forces,   and  the  whole  region  of  war.^    General 

'truce,"    an    "armistice,"    and    a  small  parts  of  the  belligerent  forces 

"  suspension  of  arms."  '     Larid  War-  and   small  parts  of   the   theatre   of 

fire,  §  256 — see  in  particular  note  (a)  war  may  be  speciallj'  excluded  with- 

— accepts   the  distinction   as  indis-  out    detracting    from    the    general 

pensable.  character  of  the  armistice,  provided 

*  An  instructive  example  of  a  sus-  that  the  bulk  of  the  forces,  and  the 
pension  of  arms  for  such  purposes  is  greater  part  of  the  region  of  war, 
furnished  by  the  convention  between  are  included.  Thus,  Article  1  of  the 
the  German  forces  besieging  Belfort  general  armistice  at  the  end  of  the 
and  the  French  forces  holding  this  Franco-German  War  of  January  28, 
fortress  during  the  Franco-German  1871,  specially  excluded  all  military 
War,  signed  on  February  13,  1871  ;  operations  in  the  D^partements  du 
Bee  Martens,  N.R.G.,  xix.  p.  646.  Doubs,   du   Jura,    de  la  Cote  d'Or, 

•  However,  for  particular  reasons,  and  likewise  the  siege  of  Belfort. 

VOL.   11.  X 


322       NON-HOSTILE   RELATIONS   OF  BELLIGERENTS 

armistices  ^  are  always  conventions  of  vital  political  im- 
portance affecting  the  whole  of  the  war.  They  are  as  a 
rule,  although  not  necessarily,  concluded  for  a  poUtical 
purpose.  It  may  be  that  negotiations  of  peace  have 
ripened  so  far  that  the  end  of  the  war  is  in  sight,  and 
that,  therefore,  mihtary  operations  appear  superfluous  ; 
or  that  the  forces  of  either  belligerent  are  exhausted  and 
need  rest ;  or  that  the  belhgerents  have  to  face  domestic 
difficulties,  the  settlement  of  which  is  more  pressing  than 
the  continuation  of  the  war  ;  or  for  any  other  pohtical 
purpose.^  Thus  Article  2  of  the  general  armistice  at 
the  end  of  the  Franco-German  War  dated  January  28, 
1871,^  expressly  declared  the  purpose  of  the  armistice 
to  be  to  enable  the  French  Government  to  convoke  a 
Parhamentary  Assembly  which  might  determine  whether 
the  war  was  to  be  continued,  or  what  conditions  of  peace 
should  be  accepted.  On  the  other  hand,  each  of  the 
Central  Powers  asked  for,  and  were  granted,  an  armis- 
tice in  the  World  War  because  they  could  no  longer 
continue  the  struggle,  and  desired  peace. 

Under  pressure  of  mihtary  disaster,  Bulgaria  sought  a 
general  armistice  *  which  was  granted  on  September  29, 
1918.  Early  in  October,  Austria-Hungary  made  over- 
tures ^  to  the  United  States  for  an  armistice  which  was 
eventually  concluded  on  November  3, 1918,  between  repre- 
sentatives of  the  Austro-Hungarian  Supreme  Command 

^  In   the   practice  of  belligerents  d'Armistice' (Martens, -^^.^.(T.,  xix. 

the  terms  '  suspension  of  arms '  and  p.  634). 

'  general  armistice '  are  sometimes  *  Sometimes,  where  several  States 
not  sufficiently  distinguished,  but  are  together  waging  war  against 
are  interchangeable.  Thus,  for  in-  a  common  foe,  some  of  them  con- 
stance,  the  armistice  between  France  elude  a  general  armistice,  and  others 
and  Germany  mentioned  in  n.  2  on  decline.  Thus  in  1912,  during  the 
p.  321  is  entitled  '  Convention  entre  Balkan  War,  Bulgaria,  Serbia,  and 
I'AUemagne  et  la  France  pour  la  Sus-  Montenegro  entered  into  an  armistice 
pension  des  Hostilit6s  .  .  .,'  whereas  M-ith  Turkey,  but  Greece  refused  to 
the  different  articles  of  the  conven-  join. 

tion   always   speak    correctly  of  an  '  Martens,  N.R.O.,  xix.  p.  626. 

armistice,    and    an    annex    to    the  *  A.J.,  xiii.   (1919),  Supplement, 

convention  signed  on  January  29  is  p.  402. 
entitled    'Annexe  k   la   Convention  *  Ibid.,  p.  77. 


ARMISTICES  323 

and  representatives  of  the  Italian  Supreme  Command 
acting  on  behalf  of  the  Alhed  and  Associated  Powers.^ 
A  general  armistice  with  Turkey  had  already  been  signed 
on  October  30, 1918.  On  October  3-6, 1918,  the  German 
Government  had  requested  the  President  of  the  United 
States  to  take  steps  for  the  restoration  of  peace,  '  and  in 
order  to  avoid  further  bloodshed,'  it  had  requested  him 
'  to  bring  about  the  immediate  conclusion  of  a  general 
armistice  on  land,  on  water,  and  in  the  air/  ^  After 
correspondence  and  assurances,  the  President  informed 
Germany  on  October  23,  1918,^  that  he  was  taking  up 
with  the  Associated  Powers  the  question  of  an  armistice, 
and  on  November  5,*  he  notified  her  that '  Marshal  Foch 
has  been  authorised  by  the  Government  of  the  United 
States  and  the  AlHed  Goverimients  to  receive  properly 
accredited  representatives  of  the  German  Government, 
and  to  communicate  to  them  terms  of  an  armistice/ 
A  meeting  took  place,  and  a  general  armistice  was  con- 
cluded between  Marshal  Foch,  commander-in-chief  of 
the  Alhed  armies,  acting  on  behalf  of  the  Alhed  and 
Associated  Powers,  in  conjunction  with  Admiral 
Wemyss  of  the  one  part,  and  the  German  delegation 
of  the  other  part,  on  November  11,  1918.^ 

§  234.  Partial  armistices  are  agreements  for  cessa-  Partial 
tion  of  hostihties  which  are  not  concluded  by  belh-  4^™^**" 

•'   .  tices. 

gerents  for  their  whole  forces  and  the  whole  region  of 
war,  yet  do  not,  hke  suspensions  of  arms,  merely  serve 
momentary  and  local  military  purposes.  Partial  armis- 
tices are  concluded  by  belhgerents  for  a  considerable 
part  of  their  forces  and  front ;  they  are  always  of  pohti- 
cal  importance  affecting  the  war  in  general ;  and  they 
are  very  often,  although  they  need  not  be,  agreed  upon 
for  pohtical  purposes.     Article  37  of  the  Hague  Regula- 

*  A.J.,   xiii.   (1919),  Supplement,  *  Ibid.,  p.  95. 
p.  80. 

*  Ibid. ,  p.  85.  ^  Ibid. ,  p.  97.    Pari.  Papers,  Misc. , 

*  Ibid.,  p.  92.  No.  25  (1918),  Cd.  9212. 


324       NON-HOSTILE   RELATIONS   OF  BELLIGERENTS 

tions  apparently  includes   partial  armistices   together 
with  suspensions  of  arms  under  the  term  '  local '  armis- 
tices.    A  partial  armistice  may  be  concluded  for  the 
mihtary  or  the  naval  forces  only  ;    for  cessation  of 
hostihties  in   the  colonies  only ;    and  the  hke.      But 
it   is   always    a    condition   that    a    considerable    part 
of   the  forces  and  of   the  region  of  war  must  be  in- 
cluded, and  that  the  purpose  is  not  only  a  momentary 
one. 
Compe-         §  235.  As  regards  the  competence  to  conclude  armis- 
conciude   tices,  a  distiuctiou  is  necessary  between  suspensions  of 
Armis-      arms  and  general  and  partial  armistices. 

tices.  o  i.  »  . 

(1)  Since  the  character  and  purpose  of  a  suspension 
of  arms  are  mihtary,  local,  and  momentary  only,  every 
commander  is  supposed  to  be  competent  to  make  such 
an  agreement,  and  no  ratification  by  superior  officers 
or  other  authorities  is  required.  Even  commanders 
of  the  smallest  opposing  detachments  may  arrange  a 
suspension  of  arms. 

(2)  On  the  other  hand,  since  general  armistices  are  of 
vital  pohtical  importance,  only  the  belhgerent  Govern- 
ments themselves  or  their  commanders-in-chief  are 
competent  to  conclude  them,  and  ratification,^  whether 
specially  stipulated  or  not,  is  necessary.  Should  a 
commander-in-chief  conclude  a  general  armistice  which 
would  not  find  ratification,  hostihties  may  at  once  be 
recommenced  without  breach  of  faith,  it  being  a  matter 
of  common  knowledge  that  a  commander-in-chief  is  not 
authorised  to  agree  upon  exclusion  of  ratification,  unless 
he  received  special  powers  thereto. 

(3)  Partial  armistices  may  be  concluded  by  the 
commanders-in-chief  of  the  respective  forces,  and  rati- 
fication is  not  necessary,  unless  specially  stipulated; 

^  The    general    armistices    which  ratification,  and   the   author   would 

brought  about   a   cessation  of   hos-  probably  have  wished  to  revise  this 

tilities   in  the  World  War  in  1918  paragraph. 
were    in     no    case     submitted     for 


ARMISTICES  325 

the  commanders  being  responsible  to  their  own  Govern- 
ments in  case  they  agree  upon  a  partial  armistice  without 
being  specially  authorised  thereto. 

§  236.  No  legal  rule  exists  regarding  the  form  of  Form  of 
armistices,  which  may  therefore  be  concluded  either  ticS!^ 
orally  or  in  writing.  However,  the  importance  of 
general  and  partial  armistices  makes  it  advisable  to 
conclude  them  by  signing  written  documents  containing 
all  items  which  have  been  agreed  upon.  No  instance  is 
known  of  a  general  or  partial  armistice  in  modern  times 
concluded  otherwise  than  in  writing.  But  suspensions 
of  arms  are  often  only  orally  concluded. 

§  237.  That   hostihties  must    cease    is    the   obvious  Contents 
content  of  all  kinds  of  armistices.     Usually,  although  tices!^™'^ 
not  at  all  necessarily,  the  parties  embody  special  con- 
ditions in  the  armistice  agreement.     If,  and  so  far  as, 
this  has  not  been  done,  the  legal  consequences  of  an 
armistice   are   in   some   respects   much   controverted. 
Everybody  agrees  that  belhgerents  during  an  armistice 
may,  outside  the  hne  where  the  forces  face  each  other, 
do  everything  and  anything  they  Hke  regarding  defence 
and  preparation  of  offence ;    for  instance,  they  may 
manufacture    and   import   munitions    and   guns,    drill 
recruits,  build  fortresses,  concentrate  or  withdraw  troops. 
But  no  unanimity  exists  regarding  such  acts  as  must 
be  left  undone,  or  may  be  done,  within  the  very  hne 
where    the    belhgerent   forces    face    each    other.     The 
majority  of  writers,  led  by  Vattel,^  maintain  that,  in 
the  absence  of  special  stipulations,  it  is  an  imphed  con- 
dition of  an  armistice  that  within  that  hne  no  alteration 
of  the  status  quo  shall  take  place  which  the  other  party, 
were  it  not  for  the  armistice,  could  by  apphcation  of 
force,  for   instance  by  a  cannonade  or  by  some  other 
means,  prevent.     These  writers  consider  it  a  breach  of 
faith  for  a  belhgerent  to  make  such  alterations  under 

^  iii.  §§  246-248. 


326       NON-HOSTILE   RELATIONS   OF  BELLIGERENTS 

the  protection  of  the  armistice.  On  the  other  hand,  a 
small  minority  of  writers,  but  led  by  Grotius  ^  and 
Pufendorf,^  assert  that  cessation  of  hostihties  and  of 
further  advance  are  the  only  impHed  terms  of  an  armis- 
tice ;  all  other  acts,  such  as  strengthening  positions  by 
concentration  of  more  troops  on  the  spot,  erecting  and 
strengthening  defences,  repairing  breaches  in  besieged 
fortresses,  withdrawing  troops,  and  the  hke,  being 
allowed.  As  the  Hague  Regulations  do  not  mention 
the  matter,  the  controversy  still  remains  unsettled.  I 
beheve  the  opinion  of  the  minority  to  be  correct,  since 
an  armistice  does  not  mean  anything  else  than  a  cessa- 
tion of  actual  hostihties,  and  it  is  for  the  parties  them- 
selves to  stipulate  such  special  conditions  as  they  think 
necessary  or  convenient.  It  seems  to  be  the  intention 
of  the  Hague  Regulations  that  they  should  do  this. 
This  apphes  particularly  to  the  other  controversial 
questions  as  to  revictualhng  besieged  places  and  as  to 
intercourse,  commercial  and  otherwise,  with  the  inhabi- 
tants of  the  region  where  actual  fighting  was  going  on 
before  the  armistice.  As  regards  revictualhng,  it  has 
been  correctly  maintained  that,  if  it  were  not  allowed, 
the  position  of  the  besieged  forces  would  thereby  be 
weakened  by  the  action  of  the  armistice.  But  I  cannot 
see  why  this  should  be  an  argument  to  hold  revictualhng 
permissible.  The  principle  vigilantibus  jura  sunt  scripta 
applies  to  armistices  as  well  as  to  all  other  legal  tran- 
sactions. It  is  for  the  parties  to  advise  such  arrange- 
ments as  really  suit  their  needs  and  wants.  Thus, 
during  the  Franco-German  War,  an  armistice  for  twenty- 
five  days,  proposed  in  November  1870,  fell  to  the  ground 
on  the  Germans  refusing  to  permit  the  revictualhng  of 
Paris.  ^    As  to  intercourse,  Article  39  of  the  Hague 

^  iii.  c.  21,  §  7.  victualling   during   an    armistice    is 

^  viii.  7,  §  10.  discussed   at  some    length,  and  the 

'  See    Pradier-Fod6r6,     \ai.     No.  opinions   of    many   publicists    from 

2908,    where    the    question   of    re-  Grotius  to  our  own  day  are  quoted. 


ARMISTICES  327 

Regulations  provides  that :  *  It  is  for  the  contracting 
})arties  to  settle  in  the  terms  of  the  armistice  what  com- 
nmnications  may  be  held  within  the  theatre  of  war  with 
the  population  and  with  each  other/ 

For  the  purpose  of  preventing  the  outbreak  of  hos- 
tihties  during  an  armistice,  it  is  usual  to  agree  upon  so- 
called  hues  of  demarcation  ^ — that  is,  a  small  neutral 
zone  between  the  forces  facing  each  other  which  must 
not  be  entered  by  members  of  either  force.  But  there  are 
no  hues  of  demarcation  in  default  of  special  agreement. 

§  238.  In  case  the   contrary  is  not  stipulated,   an  com- 
armistice  commences  the  very  moment  the  agreement  ™gJJt^o{ 
upon  it  is  complete.     But  often  the  parties  expressly  Armis- 
stipulate  the  time  from  which  it  shall  begin.     If  the  very 
hour   is  stipulated,  there  is  no  cause  for  controversy. 
But  sometimes  the  parties  only  provide  that  the  armis- 
tice shall  last  from  one  stated  day  to  another,  e.g.  from 
June  15  to  July  15.     In  such  a  case  the  actual  commence- 
ment is  controversial.     Most  pubhcists  maintain  that 
the  armistice  begins  at  12  o'clock  of  the  night  between 
the  14th  and  the  15th  of  June,  but  Grotius  maintains 
that  it  begins  at  12  o'clock  of  the  night  between  the  15th 
and  the  16th  of  June.^     Therefore,  to  avoid  difficulties, 
armistice  agreements  ought  always  to  be  more  precise. 

When  the  forces  included  in  an  armistice  are  dis- 
persed over  a  very  large  area,  the  parties  have  very  often 
stipulated  different  dates  of  commencement  for  the 
different  parts  of  the  front,  because  it  has  not  been 
possible  to  announce  the  armistice  at  once  to  all  the 
forces  affected.  Thus,  for  instance.  Article  1  of  the 
general  armistice  at  the  end  of  the  Franco-German  ^Yar  ^ 
stipulated  that  it  should  take  effect  at  once  for  the 
forces  in  and  around  Paris,  but  that  with  regard  to  the 

^  See     Pradier-Foderd,     vii.  No.  controversy  occurs  again  with  regard 

-901.  to   the    end    of    an    armistice  ;    see 

-  Grotius,    iii.    c.    21,    §   4.  See  below,  §  240. 

Pradier-Fod^r^,  vii.  No.  2897.  The  »  Martens,  N.R.G.,  xix.  p.  626. 


328       NON-HOSTILE   RELATIONS   OF  BELLIGERENTS 

other  forces  its  commencement  should  be  delayed  three 
days.  Article  38  of  the  Hague  Regulations  enacts  that 
an  armistice  must  be  notified  officially  and  in  good 
time  to  the  competent  authorities  and  the  troops,  and 
that  hostihties  are  suspended  immediately  after  notifi- 
cation or  at  a  fixed  time,  as  the  case  may  be.^ 

It  sometimes  happens  that  hostihties  are  carried  on 
after  the  commencement  of  an  armistice  by  forces  which 
did  not  know  of  its  commencement.  In  such  cases  the 
status  quo  at  the  date  of  the  commencement  of  armistice 
has  to  be  re-estabhshed  so  far  as  possible,  prisoners  made 
and  enemy  vessels  seized  being  Hberated,  capitulations 
annulled,  places  occupied,  evacuated,  and  the  hke  ;  but 
the  parties  may,  of  course,  stipulate  the  contrary. 
Violation  §  239.  Any  violation  ^  of  armistices  is  prohibited,  and, 
ticea!^™^^  if  ordered  by  the  Governments  concerned,  constitutes 
an  international  delinquency.  In  case  an  armistice 
is  violated  by  members  of  the  forces  on  their  own 
account,  the  individuals  concerned  may  be  punished  by 
the  other  party  in  case  they  fall  into  his  hands.  But 
apart  from  this  no  unanimity  exists  among  the  writers 
on  International  Law  as  to  the  rights  of  the  injured 
party  in  case  of  violation  by  the  other  party  ;  many  ^ 
assert  that  the  injm'ed  may  at  once,  without  giving 
notice,  reopen  hostihties  ;  others  *  maintain  that  he 
may  not,  but  has  only  a  right  to  denounce  the  armistice. 
The  Hague  Regulations  endeavom^ed  to  settle  the  con- 
troversy, Article  40  enacting  that  any  serious  violation 
of  an  armistice  by  one  of  the  parties  gives  the  other  the 
right  to  denounce  it,  and  even,  in  case  of  urgency,  to 

^  The  general  armistice  -with  Ger-  *  See,  for  instance,  Grotius,  iii,  c. 

many   in  the    World    War  in   1918  21,  §  11  ;  Pufendorf,  viii.  c.  7,  §  12 ; 

was  signed  at  6  A.M.  and  was  to  take  Vattel,  iii.  §  242;    Phillimore,  ii.    § 

effect  at  11  A.M.  121;  Bluntschli,   §   695;  Fiore,   iii. 

*  Such  as  the  scuttling  of  German  No.  1494. 

vessels  at  Scapa  Flow  on  June  21,  *  See,    for   instance,  Calvo,  iv.    § 

1919,    by    order    of     Admiral    von  2436;  Despagnet,  No.  566 ;  Pradier- 

Reuter.  Fod6r6,  vii.  No.  2913. 


ARMISTICES  329 

recommence  hostilities  at  once.  Three  rules  may  be 
formulated  from  this — (1)  violations  which  are  not 
serious  do  not  even  give  a  right  to  denounce  an  armis- 
tice ;  (2)  serious  violations  do  empower  the  other  party 
to  denounce  the  armistice,  but  not,  as  a  rule,  to  recom- 
mence hostihties  at  once  without  notice  ;  (3)  only  in 
case  of  urgency  is  a  party  justified  in  recommencing 
hostihties  without  notice.  But  since  the  terms  '  serious 
violation  '  and  '  urgency  '  lack  precise  definition,  the 
course  to  be  taken  is  in  practice  left  to  the  discretion  of 
the  injured  party. 

Violation  of  an  armistice  by  private  individuals,  acting 
on  their  own  initiative,  is  to  be  distinguished  from  viola- 
tion by  members  of  the  armed  forces.  For  a  violation  by 
unauthorised  private  persons,  the  injured  party  has, 
according  to  Article  41  of  the  Hague  Kegulations,  only 
the  right  of  demanding  punishment  of  the  offenders,  and> 
if  necessary,  compensation  for  losses  sustained. 

§  240.  In  case  an  armistice  has  been  concluded  for  End  of 
an  indefinite  period,  the  parties  having  made  no  stipu-  ticS!^ 
lations  regarding  notice  to  recommence  hostihties, 
notice  may  be  given  at  any  time,  and  hostilities  re- 
commenced at  once  after  notification.  In  most  cases, 
however,  armistices  are  agreed  upon  for  a  definite  period, 
and  then  they  expire  at  the  end  of  it  without  special 
notice,  unless  notification  has  been  expressly  stipulated. 
If,  in  case  of  an  armistice  for  a  definite  period,  the  exact 
hour  of  the  termination  has  not  been  agreed  upon,  but 
only  the  date,  the  armistice  terminates  at  twelve  o'clock 
midnight.  In  case  an  armistice  has  been  arranged  to 
last  from  one  certain  day  to  another,  e.g.  from  June  15 
to  July  15,  it  is  controversial  ^  whether  July  15  is  ex- 
cluded or  included.  An  armistice  may,  lastly,  be  con- 
cluded under  a  resolutive  condition,  in  which  case  the 
occurrence  of  the  condition  brings  the  armistice  to  an  end. 

^  See  above,  §  238. 


CHAPTER  YI 

MEANS  OF  SECURING  LEGITBIATE  WARFARE 


ON  MEANS  IN  GENERAL  OF  SECURING  LEGITIMATE 
WARFARE 

Bonfils,    No8.    1014-1017— Spaight,    p.   461— iand    War/are,  §§    435-438— 
Garner,  ii.  §§  578-595. 

Legiti-  §  241.  Since  war  is  not  a  condition  of  anarchy  and 
Sfe^iS"^  lawlessness,  International  Law  requires  that  belU- 
ma,te  gerents  shall  comply  with  its  rules  in  carrying  on  their 
mihtary  and  nayal  operations.  So  long,  and  in  so  far, 
as  belhgerents  do  this,  their  warfare  is  legitimate  ;  if 
they  do  not,  their  warfare  is  illegitimate.  Now,  illegiti- 
mate acts  and  omissions  can  be  committed  by  belli- 
gerent Governments  themselves,  by  commanders  or 
members  of  the  forces,  and  by  individuals  who  do  not 
belong  to  the  forces.  Experience  teaches  that,  on  the 
whole,  illegitimate  acts  and  omissions  on  the  part  of 
individual  soldiers  are  unavoidable  during  war,  since 
the  passions  which  are  aroused  by,  and  during,  war  will 
always  carry  away  some.  But  belligerents  bear  a 
vicarious  responsibihty  for  internationally  illegal  acts 
of  their  soldiers,  which  turns  into  original  responsibihty 
if  they  refuse  to  repair  the  wrong  done  by  punishing 
the  offenders  and,  if  necessary,  compensating  the 
sufierers.^    Cases    in    which    belhgerent    Governments 

^  See  above,  vol.  i.  §§  149-150. 
S30 


MEANS   OF   SECURING   LEGITIMATE   WARFARE       331 

themselves  commit  illegitimate  acts,  and  also  cases  in 
which  they  refuse  to  punish  their  soldiers  for  illegiti- 
mate acts,  constitute  international  dehnquencies.^  Now, 
if  in  time  of  peace  an  international  delinquency  is  com- 
mitted, the  injured  State  can,  if  the  worst  comes  to  the 
worst,  make  war  against  the  offender  to  compel  adequate 
reparation.-  But  if  an  international  dehnquency  is 
committed  during  warfare  itself,  no  means  whatever 
exist  at  present  for  compelling  reparation. 

§  242.  Now  legitimate  warfare  is,  at  any  rate  to  a  How  Le- 
certain  extent,  secm^ed  through  several  means  recog-  warfare 
nised  by  International  Law.     These  means  fall  into  three  ^^  ^°  * 

*'  certain 

classes.  The  first  class  comprises  measures  of  seK-help  :  extent 
— reprisals  ;  punishment  of  war  crimes  committed  by 
enemy  soldiers  and  other  enemy  subjects  ;  the  taking  of 
hostages.  The  second  class  comprises : — complaints 
lodged  with  the  enemy  ;  complaints  lodged  with  neutral 
States  ;  good  offices,  mediation,  and  intervention  on 
the  part  of  neutral  States.  The  third  class  comprises 
rights  to  compensation.  Thus,  according  to  Article  3 
of  Hague  Convention  rv.,  belhgerents  are  responsible 
for  all  acts  committed  by  members  of  their  forces,  and 
are  Hable  to  make  compensation,  if  the  case  demands  it, 
for  any  violation  of  the  Hague  Regulations.  These 
means  secure  to  a  certain  extent  legitimate  warfare, 
because  it  is  to  the  interest  of  both  belhgerents  to 
prevent  the  enemy  from  getting  a  justifiable  oppor- 
tunity of  making  use  of  them.  In  spite  of  this,  many 
illegitimate  acts  of  individual  enemy  soldiers  will  always 
occur ;  but  they  will  in  many  cases  meet  w^ith  punish- 
ment by  one  belhgerent  or  the  other.  Hostile  acts  of 
private  enemy  individuals  not  belonging  to  the  armed 
forces,  beUigerents  have  a  right  ^  to  punish  severely  as 
acts  of  illegitimate  warfare. 

^  See  above,  vol.  i.  §  151.  '  See  below,  §  254. 

'  See  above,  vol.  i.  §  156. 


332         MEANS   OF  SECURING  LEGITIMATE   WARFARE 

However,  although  to  a  certain  extent  legitimate 
warfare  is  in  fact  secured  by  these  means,  the  two  Balkan 
Wars  of  1912  and  1913,  and  especially  the  World  War, 
in  which  most  appaUing  atrocities,  and  many  violations 
of  fundamental  principles  of  the  law  of  war,  were  com- 
mitted, have  clearly  demonstrated  that  new  means  must 
be  found  to  compel  belHgerents  to  conduct  war  within 
the  Hmits  of  the  laws  of  war.^ 


II 

COMPLAINTS,  GOOD  OFFICES  AND  MEDIATION, 
INTERVENTION 

Land  War/are,  §§  439-440. 

Cora-  §  243.  Commanders  of   forces   engaged  in  hostihties 

fodged  frequently  lodge  complaints  with  each  other  regarding 
with  the  single  acts  of  illegitimate  warfare  committed  by  members 
of  their  forces,  such  as  abuses  of  the  flag  of  truce,  viola- 
tions of  the  flag  of  truce,  or  of  the  Geneva  Convention, 
and  the  like.  The  complaint  is  sent  to  the  enemy  under 
the  protection  of  a  flag  of  truce,  and  the  interest  which 
every  commander  takes  in  the  legitimate  behaviour  of 
his  troops  should  always  make  him  attend  to  complaints 
and  punish  the  offenders,  provided  that  the  complaints 
are  found  to  be  justified.  Very  often,  however,  it  is 
impossible  to  verify  the  charges,  and  then  charge  and 
denial  face  each  other  without  there  being  any  way  of 
solving  the  difficulty.  It  also  often  happens  during 
war  that  the  belhgerent  Governments  lodge  with  each 
other  mutual  complaints  of  illegitimate  acts  and  omis- 
sions. Since  diplomatic  intercourse  is  broken  off  during 
war,  such  complaints  are  sent  to  the  enemy,  either  under 

^  The  only  available  means — intervention  by  the  League  of  Nations — 
is  discussed  below  in  §  246. 


COMPLAINTS,   GOOD   OFFICES,    AND   MEDIATION      333 

t  lie  protection  of  a  flag  of  truce,  or  through  a  neutral  * 
State  which  lends  its  good  offices.  But  here  too  in- 
dignant charges  and  emphatic  denials  frequently  face 
each  other  without  there  being  a  way  of  solving  the 
confhct. 

§  244.  If  certain  grave  illegitimate  acts  or  omissions  Com- 
of  warfare  occur,  belhgerents  frequently  lodge  com-  fodg"d 
plaints  with  neutral  States,  either  asking  their  good  "^^^ 
offices,  mediation,  or  intervention  to  make  the  enemy 
comply  with  the  laws  of  war,  or  simply  drawing  their 
attention  to  the  facts.  Thus,  at  the  beginning  of  the 
Franco-German  War,  France  lodged  a  complaint  with 
Great  Britain,  and  asked  her  intervention  on  account 
of  the  intended  creation  of  a  volunteer  fleet  by  Germany, 
which  France  considered  to  be  a  violation  of  the  Declara- 
tion of  Paris.2  Conversely,  in  January  1871,  Germany, 
in  a  circular  addressed  to  her  diplomatic  envoys  abroad, 
to  be  communicated  to  the  neutral  Governments,  com- 
plained of  twenty-one  cases  in  which  the  French  forces 
had,  dehberately  and  intentionally  it  was  alleged,  fired 
on  bearers  of  a  flag  of  truce.  Again,  in  November  1911, 
and  in  February  1912,  during  the  Turco-Itahan  War, 
Turkey  lodged  complaints  with  the  Powers  on  account 
of  the  execution  of  Arabs  in  Tripoh  as  war  criminals, 
and  on  account  of  the  bombardment  of  Turkish  war- 
vessels  in  the  harbour  of  Beirut.^ 

During  the  World  War  all  the  belligerents  lodged 
innumerable  complaints  with  the  neutral  Powers, 
accusing  one  another  of  countless  violations  of  the  laws 
of  war  and  neutrahty. 

§  245.  Complaints  lodged  with  neutral  States  may 
instigate  one  or  more  of  them  to  lend  their  good  offices 

'   Thus,  in  October    1904,  during  United  States  of  America ;  see  Taka- 

the  Russo-Japanese  War,  Japan  sent  hashi,  pp.  174-178,  and  above,  §  164. 

a  complaint  concerning  the  alleged  See  also  above,  §  216  n. 

use  of  Chinese  clothing  by  Russian  ,  „        i     ^     e  qa 

troops  to  the  Russian  Government,  ' 

through    the     Government    of    the  *  See  above,  §  213. 


334      MEANS   OF  SECURING   LEGITIMATE   WARFARE 

Good        or  mediation  to  the  belligerents  for    the  purpose  of 
and  settUng  the  conflict  arising  from  charges  and  denials 

Jfo^^*"  of  illegitimate  acts  or  omissions  of  warfare  ;  and  resort 
to  reprisals  may  thus  be  prevented.  Good  offices  and 
mediation  so  offered  do  not  difier  from  those  which  settle 
a  difference  between  States  in  time  of  peace  ;  ^  they  are 
friendly  acts  in  contradistinction  to  intervention,  which 
is  dictatorial  interference  for  the  purpose  of  making  the 
beUigerents  comply  with  the  laws  of  war. 
interven-  §  246.  There  can  be  no  doubt  that  neutral  States 
^^^rtTf^^^  (whether  a  complaint  has  been  lodged  with  them  or 
Neutrals,  not)  may,  either  singly,  or  jointly  and  collectively, 
exercise  intervention  whenever  illegitimate  acts  or 
omissions  of  warfare  are  committed  (1)  by  belhgerent 
Governments,  or  (2)  by  members  of  belhgerent  forces,  if 
the  Governments  concerned  do  not  punish  the  offenders. 
It  has  already  been  stated  ^  that  other  States  have  a  right 
to  intervene,  in  case  a  State  violates,  in  time  of  peace  or 
war,  those  principles  of  the  Law  of  Nations  which  are 
universally  recognised.  There  is  not  the  shghtest  doubt 
that  such  principles  of  International  Law  are  endangered 
in  case  a  belhgerent  Government  commits  acts  of  illegiti- 
mate warfare  or  does  not  punish  the  offenders  in  case 
such  acts  are  committed  by  members  of  its  armed  forces. 
But  apart  from  this,  the  Hague  Regulations  make 
illegitimate  acts  of  warfare  on  land  now  appear  as  by 
right  the  affair  of  all  signatory  States  to  the  convention, 
and  therefore,  in  case  of  war  between  signatory  States, 
the  neutral  signatory  States  certainly  have  a  right  of 
intervention  if  acts  of  warfare  are  committed  which  are 
illegitimate  according  to  the  Hague  Regulations.  If 
anv  such  intervention  occurred,  it  would  have  noth- 
ing to  do  mth  the  war  in  general,  and  would  not  make 
the  intervening  State  a  party  to  the  war,  but  would 
concern  only  the  international  dehnquency  committed 

1  Discussed  above,  §§7-11.  *  Above,  vol,  i.  §  135  (4) 


REPRISALS  335 

by  the   one   belligerent   tlirough    acts    of    illegitimate 
warfare. 

But  although  neutral  States  have  without  doubt  a 
right  to  intervene,  they  have  at  present  no  duty  to  do 
so,  with  the  consequence  that  a  great  many  violations 
of  the  laws  are  committed.  The  two  Balkan  Wars  of 
1912  and  1913,  and  still  more  the  World  War,  in  which 
most  appalling  atrocities  and  many  violations  of  funda- 
mental principles  of  the  law  of  war  were  committed,  have 
shown  that  belhgerents  are  frequently  ready  to  brush 
aside  all  rules  of  warfare  for  the  sake  of  some  mihtary 
purpose.  It  would  seem  that  the  only  way  in  which, 
in  the  future,  such  violations  can  be  prevented,  is  by 
making  it  a  duty  of  the  League  of  Nations  to  exercise 
intervention  in  case  a  belhgerent  violates  fundamental 
principles  of  law  concerning  the  conduct  of  war.^ 


Ill 

REPRISALS 

Vattel,  iii.  §  142— Hall,  §  135— Westlake,  ii.  pp.  123-126,  and  Papers,  pp. 
259-264— Taylor,  §§  487,  507— Wharton,  iii.  §  3486— Hershey,  No. 
337— Moore,  vii.  §  1114— Bluntsehli,  §§  567,  580,  654,  685— Lueder  in 
HoUzendorff,  iv.  p.  392— Pradier-Fod6r6,  viii.  Nos.  3214-3221— Bonfils, 
Nos.  1018-1026— Despagnet,  No.  543— Rivier,  ii.  pp.  298-299— Calvo, 
iv.  §§  2041-2043— Martens,  ii.  §  121— M^rignhac,  iii".  pp.  349-358— 
Holland,  War,  Nos.  119-120— Bord well,  p.  305— Spaight,  pp.  462-465 
— Land  Warfare,  §§  452-460 — Lammasch,  Das  Volkerrecht  nach  dem 
Kriege  (1917),  pp.  17-20 — Le  Fur,  Des  Represailles  en  Temps  de  Guerre 
(1919)— Halleck  in  A. J.,  vi.  (1912),  pp.  107-118— Wilkinson  in  the 
Law  Magazine  and  Review,  xl.  (1914-15),  pp.  289-298 — Woolsey  in  the 
Proceedings  of  the  American  Society  of  International  Law,  ix.  (1915), 
pp.  62-67 — Renault  in  the  Journal  de  Droit  intematioiial  (Clunet),  xlii. 
(1915),  pp.  313-344— M6rignhac  in  R.G.,  xxiv.  (1917),  pp.  9-26. 

§  247.  Whereas  reprisals  in  time  of  peace  are  to  be 
distinguished  from  retorsion,  and  are  injurious  acts 
committed  for  the  purpose  of  compelhng  a  State  to 

^  See  above,  vol.  i.  §  167«  (5). 


336       MEANS   OF  SECUEING   LEGITIMATE   WARFARE 


ReprisaiB  coHsent  to  a  Satisfactory  settlement  of  a  difference 

Belli-       created  through  an  international  delinquency,^  reprisals 

contradis"  between  belhgerents  are  retaliation  by  means  of  illegiti- 

tinctionto  mate  acts  of  warfare,^  whether  constituting  international 

in  Time  of  dehnquencies  or  not,  for  the  purpose  of  making  the 

Peace.      enemy  comply  in  future  with  the  rules  of  legitimate 

warfare.^    Reprisals  between  belligerents  *  are  terrible 

means, ^  because  they  are  in  many  cases  directed  against 

innocent  enemy  individuals,  who  must  suffer  for  real 

or  alleged  offences  for  which  they  are  not  responsible. 

Reprisals  cannot  be  dispensed  with,  because  without 

them  illegitimate  acts  of  warfare  would  be  innumerable. 

As  matters  stand,  every  belMgerent,  and  every  member 

of  his  forces,  knows  for  certain  that  reprisals  are  to  be 


1  See  above,  §§  33,  42. 

*  The  author  had  noted  that  the 
confiscation  on  August  25,  1916,  of 
the  Palais  de  Venice  in  Rome,  the 
seat  of  the  Austrian  Legation  at  the 
Holy  See,  and  the  property  of 
Austria-Hungary,  as  a  measure  of 
reprisals  against  the  bombardment 
of  Venice  by  Austrian  aircraft  (see 
above,  vol.  i.  p.  566  n.  and  Scelle  in 
R.G.,  xxiv.  (1917),  pp.  244-255), 
would  not  seem  to  be  in  accordance 
with  the  definition  of  reprisals  given 
in  the  text,  which  presupposes  the 
resort  to  such  acts  as  are  themselves 
violations  of  the  laws  of  war.  He 
had  intended  to  reconsider  hia  de- 
finition on  this  ground. 

'  The  author  had  intended  to 
draw  a  distinction,  based  upon  the 
experience  of  the  World  War, 
between  reprisals  really  intended 
to  make  the  enemy  comply  with 
the  rules  of  legitimate  warfai'e  and 
'  reprisals '  (if  they  can  be  called 
by  this  name  at  all)  which  were 
nothing  else  than  'tit  for  tat.'  He 
would  have  quoted,  as  an  illustration 
of  the  former  kind,  the  segregation 
of  the  crews  of  German  submarines 
(see  below,  §  249  (4)),  and,  as  an 
illustration  of  the  latter  kind,  the 
action  of  the  Allies  in  following  the 
German  example  in  the  use  of  poison 
gas  and  liquid  fire  (see  above,  §§  110, 
113),  in  bombing  'open'  towns  (see 


below,  n.  5),  etc. 

*  The  question  how  far  reprisals 
are  justified  which,  although  directed 
against  the  enemy,  hit  neutrals,  is 
discussed  below,  §§  319,  360. 

*  There  was  never  a  war  in  which 
the  belligerents  resorted  so  often  to 
reprisals  as  during  the  World  War. 
To  mention  only  a  few  instances,  the 
German  army  in  Belgium  committed 
appalling  atrocities  in  the  name  of 
reprisals.  The  French  bombarded 
from  the  air  the  undefended  German 
towns  of  Stuttgart,  Karlsruhe,  and 
Treves  by  way  of  reprisals  because 
the  Germans  *  had  so  bombarded 
English  and  French  undefended 
places.  Because  Great  Britain  re- 
fused to  carry  out  all  the  rules  of 
the  unratified  Declaration  of  London, 
Germany  declared  all  the  waters 
around  the  British  Isles  a  war 
area,  and  ordered  her  submarines  to 
torpedo  all  British  merchantmen 
without  warning ;  in  this  way  the 
Lusitania  was  sunk,  and  over  1100 
innocent  civilians  drowned.  To  meet 
these  reprisals.  Great  Britain  re- 
sorted to  counter-reprisals,  and  pro- 
hibited all  imports  to,  and  exports 
from,  Germany.  Because  Great 
Britain  segregated  the  captured 
crews  of  German  submarines  from 
other  prisoners,  Germany  put  an 
equal  number  of  captive  English 
officers  into  solitary  confinement. 


REPRISALS  337 

t'xpected  in  case  they  violate  the  rules  of  legitimate 
warfare.  But  while  reprisals  are  frequently  an  adequate 
means  for  making  the  enemy  comply  with  these  rules, 
they  frequently  miss  their  purpose,  and  call  forth 
counter-reprisals  on  the  part  of  the  enemy. 

§  248.  Whereas  reprisals  in  time  of  peace  are  admis-  Repripais 
sible    for    international    dehnquencies    only,    reprisals  sUj^e^or 
between  belligerents  are  admissible  ^  for  any  and  every  every 
act  of  illegitimate  warfare,^  whether  it  constitutes  an  mate  Act 
international  deUnquency  or  not.     Thus,  the  Germans  f'are^*'^' 
during  the  Franco-German  War  frequently,  by  way  of 
reprisal,  bombarded  and  fired  undefended  open  villages 
where  their  soldiers  had  been  treacherously  killed  by 
enemy  individuals  in  ambush  who  did  not  belong  to  the 
armed  forces.    Again,  Lord  Roberts,  during  the  South 
African  War,  ordered,^  by  way  of  reprisal,  the  destruc- 
tion of  houses  and  farms  in  the  vicinity  of  a  place  where 
damage  was  done  to  the  lines  of  conununication.     Or, 
cigain,  the  appalUng  atrocities  committed  in  1914  during 
the  World  War  by  the  German  soldiery  in  Belgium, 
Germany,'*  in  so  far  as  she  did  not  deny  them  altogether, 
declared  to  have  been  necessary  as  measures  of  reprisal. 
That  this  practice  is  objectionable,  and  ought  therefore 
to  be  prohibited,  is  pointed  out  below  in  §  250. 

§  249.  The  right  to  exercise  reprisals  carries  with  it  Danger  of 
great  danger  of  arbitrariness,  for  often  the  alleged  facts  ne'ss^n^" 

Reprisals. 

^  It  is  for  the  injured  belligerent  doubt ;   see  Beinhauer,  Die  Kriegs- 

to  consider  whether  he  will  at  once  gefa^igeitscha/t  (1908),  p.  74;  Spaight, 

resort  to  x-eprisals,  or,  before  doing  pp.  89,  465. 

so,  will   lodge  complaints  with  the  3  See  Section  4  of  the  Proclamation 

enemy  or  with    neutral  States      In  ^^  j^^^^  ^g    ^g^Q  (Martens,  N.R.G., 

practice,  however,  a  belligerent  will  o    i   c  ••  1  <-7\         j  -d     1 

l,     ,       '       ,     .     '       J.  •     1      c  ^nd  Ser.  xxxii.  p.   147),  and  Beak, 

warfare  is  not  very  grave,  and  the  ^  See  the  White  Book  published 

safety  of  his  troops  does  not  require  in    1915    by   the    German    Foreign 

prompt  and  drastic  measures.  Office,  Die  Vnlkerrechtswidrige  Fiih- 

'  That   prisoners  of  war  may  be  rung  des  Belgischen  Volkskrieges,  and 

made  the  objects  of  reprisals  for  acts  the  Belgian  Grey  Book,  Repoiise  au 

of  illegitimate  warfare  committed  by  Livre   blanc    Allemand   du   10   Mai 

the    enemy,    there    is    hardly    any  1915,  (1916). 

VOL.  II.  Y 


338       MEANS   OF  SECURING  LEGITIMATE   WARFARE 

which  make  belHgerents  resort  to  them  are  not  suffi- 
ciently verified  ;  sometimes  the  rules  of  war  which  they 
consider  the  enemy  to  have  violated  are  not  generally 
recognised  ;  often  the  act  of  reprisal  performed  is  exces- 
sive compared  with  the  precedent  act  of  illegitimate 
warfare.^    Some  cases  may  illustrate  this  danger. 

(1)  In  1782  Joshua  Huddy,  a  captain  in  the  army 
of  the  American  insurgents,  was  taken  prisoner  by 
loyahsts  and  handed  over  to  a  Captain  Lippencott  for 
the  ostensible  purpose  of  being  exchanged,  but  was 
arbitrarily  hanged.  The  commander  of  the  British 
troops  had  Lippencott  arrested,  and  ordered  him  to  be 
tried  for  murder.  Lippencott  was,  however,  acquitted 
by  the  court-martial,  as  there  was  evidence  to  show 
that  his  command  to  execute  Huddy  was  in  accordance 
with  orders  of  a  Board  which  he  was  bound  to  obey. 
Thereupon  some  British  officers  who  were  prisoners  of 
war  in  the  hands  of  the  Americans  were  directed  to 
cast  lots  to  determine  who  should  be  executed  by  way 
of  reprisal  for  the  execution  of  Huddy.  The  lot  fell 
on  Captain  Asgill,  a  young  officer  only  nineteen  years 
old,  and  he  would  have  been  executed  but  for  the 
supplication  of  the  Queen  of  France,  who  saved  his  hfe.^ 

(2)  '  The  British  Government,  having  sent  to  England, 
early  in  1813,  to  be  tried  for  treason,  twenty-three  Irish- 
men, naturahsed  in  the  United  States,  who  had  been 
captured  on  vessels  of  the  United  States,  Congress 
authorised  the  President  to  retahate.  Under  this  act. 
General  Dearborn  placed  in  close  confinement  twenty- 
three  prisoners  taken  at  Fort  George.  General  Prevost, 
mider  express  directions  of  Lord  Bathurst,  thereupon 
ordered  the  close  imprisonment  of  double  the  number  of 
cormnissioned  or  uncommissioned  United  States'  officers. 
This  was  followed  by  a  threat  of  "  unmitigated  severity 

*  See  Le  Fur,  op.  cit.  passim.  Causes  celehres,in.  pp.  311-321.     See 

*  See  the  case  reported  in  Martens,        also  Phillimore,  iii.  §  105. 


REPRISALS  339 

against  the  American  citizens  and  villages  "  in  case  the 
system  of  retaliation  was  pursued.  Mr.  Madison  having 
retorted  by  putting  in  confinement  a  similar  number  of 
British  officers  taken  by  the  United  States,  General 
Prevost  immediately  retorted  by  subjecting  to  the  same 
discipline  all  his  prisoners  whatsoever.  ...  A  better 
temper,  however,  soon  came  over  the  British  Govern- 
ment, by  whom  this  system  had  been  instituted.  A 
party  of  United  States'  officers,  who  were  prisoners  of 
war  in  England,  were  released  on  parole,  with  instruc- 
tions to  state  to  the  President  that  the  twenty-three 
prisoners  who  had  been  charged  with  treason  in  England 
had  not  been  tried,  but  remained  on  the  usual  basis  of 
prisoners  of  war.  This  led  to  the  dismissal  on  parole 
of  all  the  officers  of  both  sides.'  ^ 

(3)  During  the  Franco-German  War  the  French  had 
captured  forty  German  merchantmen,  and  made  their 
captains  and  crews  prisoners  of  war.  Count  Bismarck, 
who  considered  it  against  International  Law  to  detain 
these  men  as  prisoners,  demanded  their  hberation,  and 
when  the  French  refused  this,  ordered  forty  French 
private  individuals  of  local  importance  to  be  arrested  by 
way  of  reprisal  and  sent  as  prisoners  of  war  to  Bremen, 
where  they  were  kept  until  the  end  of  the  war.  Count 
Bismarck  was  decidedly  wrong,^  since  France  had,  as 
the  law  then  stood,  in  no  way  committed  an  illegal  act 
by  detaining  the  German  crews  as  prisoners  of  war.^ 

(4)  During  the  World  War,  when  in  1915  the  German 
Government  ordered  her  submarines  to  torpedo  British 
merchantmen  at  sight  without  warning,  the  British 
Admiralty  declared  that  they  would  not  in  future 
regard  the  captured  crews  of  German  submarines  as 

^  See  Wharton,  iii.  §  3486.  n.  6.     As  regards  the  present  law  on 

^  That  Bismarck's  staftdpoint  was  the  subject,  see  above,  §§  85,  201. 
wrong  has  been  pointed  out  above  in 

§  201.     Some  German  writers,  how-  '  The  case  is  one  of  reprisals,  and 

ever,  take  his  part ;  see,  for  instance,  has  nothing  to  do  with  the  taking  of 

Lueder  in  Holtzendorff,  iv.   p.  479,  hostages ;  see  below,  §  258. 


340       MEANS   OF  SECURING   LEGITIMATE   WARFARE 

*  honoui-able  '  prisoners  of  war,  but  would  keep  them 
separate  from  other  German  prisoners.  Accordingly, 
thirty-nine  captured  officers  and  men  were  segregated 
by  way  of  reprisal  in  naval  detention  barracks.  Ger- 
many promptly  resorted  to  counter-reprisals,  and  placed 
the  same  number  of  British  officers  in  sohtary  confine- 
ment. Great  Britain  soon  afterwards  abandoned  the 
pohcy  of  differential  treatment.^ 

(5)  In  September  1914,  during  the  World  War,  the 
German  armies  in  Belgium  burned  the  university  of 
Louvain,  including  its  world-famed  hbrary,  and  other 
buildings  in  other  towns  by  way  of  reprisals,  alleging 
that  Belgian  civihans  had  fired  upon  the  German  troops. 
The  Belgian  Government  denied  these  charges  and 
maintained  that  German  soldiers  in  Louvain  had  shot 
one  another ;  the  civiHsed  world  was  horrified  at  these 
reprisals.  2 
Proposed  §  250.  The  Hague  Regulations  did  not  mention 
tion'of°  reprisals  at  all,  because  the  Brussels  Conference  of  1874, 
Reprisals,  which  acccptcd  the  unratified  Brussels  Declaration,  had 
struck  out  several  sections  of  the  Russian  draft  code 
regarding  reprisals.  These  original  sections  ^  (69-71) 
stipulated — (1)  that  reprisals  should  be  admitted  only  in 
extreme  cases  of  absolutely  certain  violations  of  the 
rules  of  legitimate  warfare  ;  (2)  that  the  acts  performed 
by  way  of  reprisal  should  not  be  excessive,  but  in  pro- 
portion to  the  violation ;  (3)  that  reprisals  should  be 
ordered  by  commanders-in-chief  only. 

In  face  of  the  arbitrariness  with  which,  according  to 
the  present  state  of  International  Law,  resort  can  be 
had  to  reprisals,  it  cannot  be  denied  that  an  agreement 
upon  some  precise  rules  regarding  them  is  an  imperative 

*  Details  from  Garner,  ii.  §  356.  ^  See  Martens,  N.R.G.,  2nd  Ser. 

iv.  pp.  14,  139,  207.    See  also  Articles 

*  Details  from  Garner,  i.  §§  282-  85  and  86  of  the  Manual  of  the  Laws 
284.  See  also  the  Belgian  and  of  War,  adopted  by  the  Institute  of 
German  oflScial  publications  men-  International  Law  (Annuaire,  v.  p. 
tioned  above,  §  248  n.  174). 


PUNISHMENT   OF  WAR   CRIMES  341 

necessity.  The  events  of  the  World  War  illustrate  the 
present  condition  of  affairs.  The  appalling  atrocities 
comniitted  by  the  German  army  in  Belgium  and 
France,  if  avowed  at  all,  were  always  declared  by  the 
German  Government  to  be  justified  as  measures  of 
reprisal.  There  is  no  doubt  that  Article  50  of  the  Hague 
Regulations,  enacting  that  no  general  penalty,  ^pecuniary 
or  otherwise,  may  he  inflicted  on  the  population  mi  account 
of  the  acts  of  individuals  for  which  it  cannot  he  regarded 
as  collectively  responsihle,  does  not  prevent  the  burning, 
by  way  of  reprisals,  of  \'illages,  or  even  towns,  for  a 
treacherous  attack  committed  there  on  enemy  soldiers 
by  unknown  individuals,  and  this  being  so,  a  brutal 
belhgerent  has  his  opportunity.  It  should,  therefore, 
expressly  be  enacted  that  reprisals,  like  ordinary 
penalties,  may  not  be  inflicted  on  the  whole  population 
for  acts  of  individuals  for  which  it  cannot  be  regarded 
as  collectively  responsible. 


IV 

PUNISHMENT   OF   WAR   CRIMES 

Hall,  §  135— Bluntschli,  §§  627-643a— Spaight,  p.  462— Holland,  War,  Nos. 
117-118— Hershey,  p.  411,  n.  4— Ariga,  §§  96-99— Takahashi,  pp.  166-184 
— Land  Warfare,  §§  441-451 — Renault,  De  l' Application  du  Droit  p^nal 
aux  Fails  de  Ouerre  (1915) — Dumas,  Les  Sanctions  penales  des  Crimes 
Allemands  (1916)— Gamer,  ii.  §§  581-58S— Landa  in  R.I.,  x.  (1878),  pp. 
182-184 — Woolsey  in  the  Proceedings  of  the  American  Society  of  Inter- 
national Law,  ix.  (1915),  pp.  67-69— Pic  in  R.G.,  xxiii.  (1916),  pp.  243- 
268 — Oppenheim  in  the  Law  Quarterly  Review,  xxxiii.  (1917),  pp.  266- 
286— M^rignhae  in  R.G.,  xxiv.  (1917),  pp.  28-56. 

§  251.  In  contradistinction  to  hostile  acts  of  soldiers  concep- 
by  which  the  latter  do  not  lose  their  privilege  of  being  ^y^r^^ 
treated  as  members  of  armed  forces  who  have  done  no  Crimes, 
wrong,  war  crimes  are  such  hostile  or  other  acts  of 
soldiers  or  other  individuals  as  may  be  punished  by 


342       MEANS  OF  SECURING  LEGITIMATE  WARFARE 


the  enemy  on  capture  of  the  offenders.^  It  must,  how- 
ever, be  emphasised  that  the  term  '  war  crime  '  is  used, 
not  in  the  moral  sense  of  the  term  *  crime,'  but  only  in 
a  technical  legal  sense,  on  account  of  the  fact  that 
perpetrators  of  these  acts  may  be  punished  by  the  enemy. 
For,  although  among  the  acts  called  war  crimes  are  many 
which  are  crimes  in  the  moral  sense  of  the  term  (such, 
for  instance,  as  the  abuse  of  a  flag  of  truce  or  assassina- 
tion of  enemy  soldiers),  there  are  others  which  may  be 
highly  praiseworthy  and  patriotic  (such  as  taking  part 
in  a  levy  en  masse  on  territory  occupied  by  the  enemy). 
But  because  every  belligerent  may,  and  actually  must, 
in  the  interest  of  his  own  safety,  punish  these  acts,  they 
are  termed  war  crimes,  whatever  may  be  the  motive, 
the  purpose,  and  the  moral  character  of  the  act.^ 

§  252.  In  spite  of  the  uniform  designation  of  these 
acts  as  war  crimes,  four  different  kinds  of  war  crimes 
must  be  distinguished  on  account  of  the  essentially 
different  character  of  the  acts  :  namely  (1)  violations 
of  recognised  rules  regarding  warfare  committed  by 
members  of  the  armed  forces,  (2)  all  hostihties  in  arms 
committed  by  individuals  who  are  not  members  of  the 
enemy  armed  forces,  (3)  espionage  and  war  treason,  (4) 
all  marauding  acts. 

§  253.  Violations  of  rules  regarding  warfare  are  war 
crimes  only  when  committed  without  an  order  of  the 
egarding  belhgcrent  Government  concerned.  If  members  of 
the  armed  forces  commit  violations  hy  order  of  their 
Government,  they  are  not  war  criminals,  and  may  not 
be  punished  ^  by  the  enemy  ;    the  latter  may,  however. 


Different 
Kinds  of 
War 
Crimes, 


Viola- 
tions of 
Rules 


Warfare. 


^  This  definition  makes  it  clear 
that  a  belligerent  may  purtish 
captured  enemy  soldiers  who  before 
capture  committed  violations  of  the 
rules  of  warfare  which  constituted — 
see  below,  §  253 — war  cr i  raes.  Strupp 
in  Z.I.,  XXV.  (1915),  p.  359,  answers 
the  question  in  the  negative.  See 
above,  vol.  i.  §  445, 


*  See  above,  §  57.  Particular 
objection  is  taken  to  the  term  '  war 
treason '  as  used  below,  §  255  ;  but 
this  term  is  generally  recognised. 
See  Spaight,  pp.  334-335. 

*  The  contrary  is  sometimes 
asserted  ;  see,  for  instance,  Bellot  in 
the  Grotius  Society,  ii.  (1917),  pp.  SI- 
SB,   and  M6rignhac  in   R.O.,   xxii. 


PUNISHMENT   OF   WAR  CRIMES  343 

resort  to  reprisals.  In  case  members  of  forces  commit 
violations  ordered  by  their  commanders,  the  members 
may  not  be  punished,  for  the  commanders  are  alone 
responsible,  and  the  latter  may,  therefore,  be  punished 
as  war  criminals  on  their  capture  by  the  enemy.^ 

The  following  are  the  more  important  violations  that 
may  occur : — 

(1)  Making  use  of  poisoned,  or  otherwise  forbidden, 
arms  and  ammunition. 

(2)  Ejlhng  or  wounding  soldiers  disabled  by  sickness 
or  wounds,  or  who  have  laid  down  arms  and  surrendered. 

(3)  Assassination,  and  hiring  of  assassins. 

(4)  Treacherous  request  for  quarter,  or  treacherous 
feigning  of  sickness  and  wounds. 

(5)  Ill-treatment  of  prisoners  of  war,  or  of  the  wounded 
and  sick.  Appropriation  of  such  of  their  money  and 
valuables  as  are  not  public  property. 

(6)  Kilhng  or  attacking  harmless  private  enemy  in- 
dividuals. Unjustified  appropriation  and  destruction 
of  their  private  property,  and  especially  pillaging. 
CompelUng  the  population  of  occupied  territory  to 
furnish  information  about  the  army  of  the  other  belH- 
gerent,  or  about  his  means  of  defence. 

(7)  Disgraceful  treatment  of  dead  bodies  on  battle- 
fields. Appropriation  of  such  money  and  other  valu- 
ables found  upon  dead  bodies  as  are  not  pubhc  property, 
nor  arms,  ammunition,  and  the  Hke. 

(1917),  pp.  51-53.  But  Dumas,  Les  the  former  German  Emperor  in 
Sanctions  pennies  des  Crimea  Alle-  relation  to  the  World  War,  or  Article 
wiarui*  (1916),  pp.  29-34,  and  Renault  227  of  the  Treaty  of  Peace  with 
in  the  Journal  de  Droit  international  Germany,  which  arraigned  him,  not 
(Clunet),  xlii.  (1915),  pp.  341-342,  as  being  responsible  for  the  war 
agree  with  me.  The  law  cannot  crimes  committed  by  order  by 
require  an  indi^^dual  to  be  punished  members  of  the  German  forces,  but 
for  an  act  which  he  was  compelled  'for  a  supreme  offence  against  inter- 
by  law  to  commit.  See  also  §  366  national  morality  and  the  sanctity 
of  the  American  Rules  of  Land  of  treaties.'  However,  the  Dutch 
Warfare  of  1914,  and  Gamer,  ii.  Government  refused  to  compel  him 
§  588.  to  leave  Holland,  and  the  trial 
^  The  author  did  not  live  to  has  not  been  proceeded  with.  See 
discuss    the   legal   responsibility   of  Gamer,  ii.  §§  589-591. 


344       MEANS   OF   SECURING   LEGITIMATE   WARFARE 

(8)  Appropriation  and  destruction  of  property  be- 
longing to  museums,  hospitals,  churches,  schools,  and 
the  hke. 

(9)  Assault,  siege,  and  bombardment  of  undefended 
open  towns  and  other  habitations.  Unjustified  bom- 
bardment of  undefended  places  by  naval  forces. 

(10)  Unnecessary  bombardment  of  historical  monu- 
ments, and  of  such  hospitals  and  buildings  devoted  to 
rehgion,  art,  science,  and  charity,  as  are  indicated  by 
particular  signs  notified  to  the  besiegers  bombarding 
a  defended  town. 

(11)  Violations  of  the  Geneva  Convention. 

(12)  Attack  on,  or  sinking  of,  enemy  vessels  which 
have  hauled  down  their  flags  as  a  sign  of  surrender. 
Attack  on  enemy  merchantmen  without  previous 
request  to  submit  to  visit. 

(13)  Attack  or  seizure  of  hospital  ships,  and  all  other 
violations  of  the  Hague  Convention  for  the  Adaptation 
to  Maritime  Warfare  of  the  Principles  of  the  Geneva 
Convention. 

(14)  Unjustified  destruction  of  enemy  prizes.^ 

(15)  Use  of  enemy  uniforms  and  the  hke  during 
battle  ;  use  of  the  enemy  flag  during  attack  by  a  belh- 
gerent  vessel. 

(16)  Violation  of  enemy  individuals  furnished  with 
passports  or  safe-conducts  ;    violation  of  safeguards. 

(17)  Violation  of  bearers  of  flags  of  truce. 

(18)  Abuse  of  the  protection  granted  to  flags  of  truce. 

(19)  Violation  of  cartels,  capitulations,  and  armistices. 

(20)  Breach  of  parole.^ 

^  Unjustified  destruction  of  neu-  bring      before      military      tribunals 

tral  prizes — see  below,  §  431 — is  not  persons  accused  of  having  committed 

a  war  crime,  but  is  nevertheless  an  acts  in   violation   of    the   laws   and 

international  delinquency,  if  ordered  customs  of  war.     Such  persons  shall, 

by  the  belligerent  government.  if    found    guilty,    be    sentenced    to 

^  By  Article  228  of  the  Treaty  of  punishments     laid    down     by    law.' 

Peace  with  Germany   '  the  German  See    also     Treaty    of     Peace     with 

Government  recognises  the  right  of  Austria,  Article  173  ;  with  Bulgaria, 

the  Allied  and  Associated  Powers  to  Article  118;  with  Hungary,  Article 


PUNISHMENT  OF  WAR    CRIMES  345 

§  254.  Since  International  Law  is  a  law  between  Hoatiii- 
States  only  and  exclusively,  no  rules  of  International  Arms  by 
Law  can  exist  to  prohibit  private  individuals  from  J*^':^^*" 
taking  up  arnis,  and  committing  hostilities  against  the  viduaU. 
enemy.  But  private  individuals  committing  such  acts 
do  not  enjoy  the  privileges  of  members  of  armed  forces, 
and  the  enemy  has,  according  to  a  customary  rule  of 
International  Law,  the  right  to  consider,  and  punish, 
such  individuals  as  war  criminals.  HostiUties  in  arms 
committed  by  private  individuals  are  not  war  crimes 
because  they  really  are  violations  of  recognised  rules 
regarding  warfare,  but  because  the  enemy  has  the  right 
to  consider  and  punish  them  as  acts  of  illegitimate 
warfare.  The  conflict  between  praiseworthy  patriotism 
on  the  part  of  such  individuals  and  the  safety  of  the 
enemy  troops  does  not  allow  of  any  solution.  It  would 
be  um-easonable  for  International  Law  to  impose  upon 
a  belHgerent  a  duty  to  forbid  the  taking  up  of  arms 
by  his  private  subjects,  because  such  action  may 
occasionally  be  of  the  greatest  value  to  him,  especi- 
ally for  the  pui'pose  of  freeing  a  country  from  the 
enemy  who  has  mihtarily  occupied  it.  Nevertheless 
the  safety  of  his  troops  compels  the  enemy  to  con- 
sider and  punish  such  hostihties  as  acts  of  illegitimate 
warfare,  and  International  Law  gives  him  a  right 
to  do  so. 

It  is  usual  to  make  a  distinction  between  hostihties 
in  arms  by  private  individuals  against  an  invading  or 
retiring  enemy  and  hostilities  in  arms  committed  by 

157 ;  with  Turkey,  Article  226.  sponsibility  for  them  attaching  to 
Before  these  treaties  were  drawTi  up  particular  individuals,  and  the  con- 
the  Peace  Conference  at  Paris  ap-  stitution  and  procedure  of  a  tribunal 
pointed  a  commission,  consisting  of  to  try  them.  The  commission  pre- 
representatives  of  ten  Allied  and  sented  a  majority  and  two  minority 
Associated  Powers,  to  consider  the  reports,  and  these  important  docu- 
responsibility  of  the  authors  of  the  ments  have  been  published  by  the 
war,  the  facts  as  to  breaches  of  the  Carnegie  Endowment  for  Inter- 
laws  and  customs  of  war  by  the  national  Peace  (Division  of  Inter- 
Central   Powers,  the  degree  of   re-  national  Law,  Pamphlet  No.  32). 


346       MEANS   OF  SECURING   LEGITIMATE   WARFARE 

the  inhabitants  against  an  enemy  occupying  a  con- 
quered territory.  In  the  latter  case  one  speaks  of  war 
rebelhon,  whether  inhabitants  take  up  arms  singly  or 
rise  in  a  so-called  levy  en  masse.  Articles  1  and  2  of 
the  Hague  Regulations  make  the  greatest  possible 
concessions  regarding  hostihties  committed  by  irre- 
gulars.^ Beyond  the  hmits  of  these  concessions  belh- 
gerents  will  never  be  able  to  go  without  the  greatest 
danger  to  their  troops. 

It  must  be  particularly  noted  that  a  merchantman 
of  a  belligerent,  which  attacks  enemy  vessels  without  pre- 
viously having  been  attacked  by  them,  may  be  con- 
sidered and  treated  as  a  pirate,^  and  that  the  captain, 
officers,  and  members  of  the  crew  may,  therefore,  be 
punished  as  war  criminals  to  the  same  extent  as 
private  individuals  who  commit  hostilities  in  land 
warfare.^ 
Espionage  §  255.  Espiouagc  and  war  treason,  as  has  been 
T^eason!^  explained  above,*  bear  a  twofold  character.  Inter- 
national Law  gives  a  right  to  belligerents  to  use 
them.  On  the  other  hand,  it  gives  a  right  to  belH- 
gerents  to  consider  them,  when  committed  by  enemy 
soldiers  or  enemy  private  individuals  within  their 
hnes,^  as  acts  of  illegitimate  warfare,  and  consequently 
punishable  as  war  crimes. 

Espionage  has  already  been  treated  above.  ^  War 
treason  consists  of  all  such  acts  (except  hostihties 
in  arms  on  the  part  of  the  civihan  population,  and 
espionage)  committed  within  the  hnes  of  a  belli- 
gerent as  are  harmful  to  him  and  are  intended  to 
favour  the  enemy.     War   treason  may  be  committed, 

*  See  above,  §§  80-81.  *  Espionage  outside  their  lines— 

,  o        ,  ecoK    ici  a  notable  feature  of  the  World  War 

*  See  above,  ss  85,  181.  .  •  .    vi  j-         *„    iu„ 

»  i3o      .  — jg    punishable    according    to   the 

*  As  regards  the  execution  of  Municipal  Lavf  of  the  State  in 
Captain  Fryatt,  see  above,  §  181.  which  it  takes  place. 

«  §  159.  '  §§  159-161. 


PUNISHMENT  OF   WAR   CRIMES  347 

not  only  in  occupied  enemy  country,  or  in  the  zone 
of  military  operations,  but  anywhere  within  the  hnes 
of  a  beUigerent.^ 

The  following  are  the  chief  cases  of  war  treason  that 
may  occur : — 

(1)  Information  of  any  kind  given  to  the  enemy. 

(2)  Voluntary  supply  of  money,  provisions,  ammuni- 
tion, horses,  clothing,  and  the  like,  to  the  enemy. 

(3)  Any  voluntary  assistance  to  mihtary  opera- 
tions of  the  enemy,  be  it  by  serving  as  guide  in 
the  country  by  opening  the  door  of  a  defended 
habitation,  by  repairing  a  destroyed  bridge,  or 
otherwise. 

(4)  Attempting  to  induce  soldiers  to  desert,  to 
surrender,  to  serve  as  spies,  and  the  hke ;  negoti- 
ating desertion,  surrender,  and  espionage  offered  by 
soldiers. 

(5)  Attempting  to  bribe  soldiers  or  officials  in  the 
interest  of  the  enemy,  and  negotiating  such  bribe. 

(6)  Liberation  of  enemy  prisoners  of  war.^ 

(7)  Conspiracy  against  the  armed  forces,  or  against 
individual  officers  and  members  of  them. 

(8)  Wrecking  of  mihtary  trains,  destruction  of  the 
hnes  of  communication  or  of  telegraphs  or  telephones 
in  the  interest  of  the  enemy,  and  destruction  of  any 
war  material  for  the  same  purpose. 

(9)  Circulation  of  enemy  proclamations  dangerous 
to  the  interests  of  the  belhgerent  concerned.^ 

*  See  Oppenheim  in  the  Laxo  justified  according  to  the  letter  of  the 
Quarterly  Review,  xxxiii,  (1917),  p.  law,  the  execution  was  an  outrage, 
266,  and  see  above,  §  251  n.,  with  especially  as  the  victim  was  a  woman 
regard  to  the  objection  raised  against  who  had  with  equal  devotion  nursed 
this  term.  German  as  well  as  French  and  Eng- 

*  During  the  World  War  Ger-  lish  wounded.  See  Garner,  ii. 
many    executed    Miss    Cavell,    who  §§  382-386. 

was  nursing  in  Brussels,  on  a  charge  '  As  to  the  treatment,  during  the 

of  having  assisted  Allied  soldiers  to  World  War,  of  airmen  who  dropped 

escape.     Even  if,  at  the  secret  trial,  proclamations    within     the     enemy 

the  charge  was  proved,  so  that  the  lines,  see  Garner,  i.  §  312. 
sentence  might   perhaps  have  been 


348      MEANS  OF   SECURING   LEGITIMATE   WARFARE 

(10)  Intentional  false  guidance  of  troops  by  a  hired 
guide,  or  by  one  who  offered  his  services  voluntarily. 

(11)  Rendering  courier,   or  similar,   services  to  the 
enemy. 

Enemy  soldiers — in  contradistinction  to  private  enemy 
individuals — may  only  be  punished  for  war  treason  when 
they  have  committed  the  act  of  treason  during  their 
stay  within  a  belUgerent's  hues  under  disguise.  If,  for 
instance,  two  soldiers  in  uruform  are  sent  to  the  rear 
of  the  enemy  to  destroy  a  bridge,  they  may  not,  when 
caught,  be  punished  for  war  treason,  because  their  act 
was  one  of  legitimate  warfare.  But  if  they  exchange 
their  uniforms  for  plain  clothes,  and  thereby  appear  to 
be  members  of  the  peaceful  private  population,  they 
may  be  punished  for  war  treason.  A  remarkable  case 
of  this  kind  occurred  in  1904,  during  the  Husso-Japanese 
War.  Two  Japanese  disguised  in  Chinese  clothes  were 
caught  in  an  attempt  to  destroy,  with  the  aid  of  dynamite, 
a  railway  bridge  in  Manchuria,  in  the  rear  of  the  Russian 
forces.  Brought  before  a  court-martial,  they  confessed 
themselves  to  be  Shozo  Jakoga,  forty-three  years  of 
age,  a  major  on  the  Japanese  General  Staff,  and  Teisuki 
Oki,  thirty-one  years  of  age,  a  captain  on  the  Japanese 
General  Staff.  They  were  convicted,  and  condemned 
to  be  hanged,  but  the  mode  of  punishment  was  changed, 
and  they  were  shot.  All  the  newspapers  which  men- 
tioned this  case  reported  it  as  a  case  of  espionage  ;  but 
it  was  in  fact  one  of  war  treason.  Although  the  two 
officers  were  in  disguise,  their  conviction  for  espionage 
was  impossible  according  to  Article  29  of  the  Hague 
Regulations,  provided,  of  course,  they  were  court- 
martialled  for  no  other  act  than  the  attempt  to  destroy 
a  bridge. 

There  are  many  acts  of  the  inhabitants  of  occupied 
enemy  country  which  a  belligerent  may  forbid  and 
punish,  in  the  interests  of  order  and  the  safety  of  his 


PUNISHMENT   OF   WAR   CRIMES  349 

army,  although  they  do  not  fall  under  the  category  of 
war  treason,  and  are  not  therefore  punishable  as  war 
crimes.  To  this  class  belong  all  acts  which  violate  the 
orders  legitimately  given  by  an  occupant  of  enemy 
territory.^ 

§  256.  Marauders  are  individuals  roving,  either  singly  Maraud- 
er collectively  in  bands,  over  battlefields,  or  following  '"^' 
advancing  or  retreating  forces,  in  quest  of  booty.  They 
have  nothing  to  do  with  warfare  in  the  strict  sense  of 
the  term ;  but  they  are  an  unavoidable  accessory  to 
warfare,  and  frequently  consist  of  soldiers  who  have 
left  their  corps.  Their  acts  are  considered  to  be  acts 
of  illegitimate  warfare,  and  they  are  punished  in  the 
interest  of  the  safety  of  either  beUigerent. 

§  257.  All  war  crimes  may  be  punished  '^  with  death.  Mode  of 
but  belhgerents  may,  of  course,  inflict  a  more  lenient  ment^of 
punishment,  or  commute  a  sentence  of  death  into  a  Yf^'^ 
more  lenient  penalty.  If  this  be  done  and  imprison- 
ment take  the  place  of  capital  punishment,  the  question 
arises  whether  persons  so  imprisoned  must  be  released 
at  the  end  of  the  war,  although  their  term  of  imprison- 
ment has  not  yet  expired.  Some  pubhcists  ^  answer 
this  question  in  the  affirmative,  maintaining  that  it 
could  never  be  lawful  to  inflict  a  penalty  extending 
beyond  the  duration  of  the  war.  But  I  beheve  that 
the  question  has  to  be  answered  in  the  negative.  If  a 
beUigerent  has  a  right  to  pronounce  a  sentence  of  capital 
punishment,  it  is  obvious  that  he  may  select  a  more 
lenient  penalty  and  carry  it  out  even  beyond  the 
duration  of  the  war.  It  would  in  no  wise  be  in  the 
interest  of  humanity  to  deny  this  right,  for  otherwise 
belhgerents  would  have  always  to  pronounce  and  carry 

^  See  Land  Warfare,  §  446.  try,  and  pronounce  judgment  in,  all 

^  The  proposal   of    Woolsey    (see  cases  of  war  crimes  is  well  meant  ; 

the    Proceedings    of   the    American  but  the  question   is   whether   it   is 

Society    of   International    Law,    ix.  capable  of  being  realised. 

(1916),    pp.    67-69),    that   an   Inter-  ■*  See,  for  instance,    Hall,   §   135, 

national   Court   of   neutrals    should  p.  437. 


350       MEANS   OF   SECURING   LEGITIMATE   WARFARE 

out  a  sentence  of  capital  punishment  in  the  interest  of 
self-preservation. 

V 

TAKING   OF   HOSTAGES 

Grotius,  iii.  c.  4,  §  14  and  c.  11,  §  18— Hall,  §§  135,  156— Taylor,  §  525— 
Bluntschli,  §  600— Lueder  in  HoUzmdorff,  iv.  pp.  475-477— Kliiber, 
§§  156,  247— G.  F.  Martens,  ii.  §  277— Ullmann,  §  183— Bontils,  Nos. 
1145  and  1151— Pradier-Foder6,  \ii.  Nos.  2843-2848— Rivier,  ii.  p.  302— 
Calvo,  iv.  §§  2158-2160— Fiore,  iii.  Nos.  1363-1364— Martens,  ii.  §  119— 
Longuet,  §  84— Bordwell,  p.  305— Spaight,  pp.  465-470— Breton,  Lt» 
Non-hflligerants :  leurs  Devoirs,  leurs  Droits,  et  la  Question  des  Otagea 
(1904)- Garner,  i.  §§  195-201— Kriegsbrauch,  pp.  49,  50— Land  War- 
fare, §§461-464. 

Former  §  258.  The  practice  of  taking  hostages,  as  a  means 
o/takTng  of  securing  legitimate  warfare,  prevailed  in  former 
Hostages,  timcs  much  more  than  nowadays.  It  was  frequently 
resorted  to  in  cases  in  which  belhgerent  forces  depended 
more  or  less  upon  each  other's  good  faith,  as,  for  instance, 
in  the  case  of  capitulations  and  armistices.  To  make 
sure  that  no  perfidy  was  intended,  officers  or  prominent 
private  individuals  were  taken  as  hostages,  and  could  be 
held  responsible  with  their  lives  for  any  perfidy  com- 
mitted by  the  enemy.  This  practice  has  totally  dis- 
appeared, and  is  hardly  hkely  to  be  revived.  But  it 
must  not  be  confounded  with  the  still  existing  practice 
of  seizing  enemy  individuals  for  the  purpose  of  making 
them  the  object  of  reprisals.  Thus,  when  in  1870, 
during  the  Franco-German  War,  Count  Bismarck  ordered 
forty  French  notables  to  be  seized,  and  to  be  taken  away 
into  captivity,  by  way  of  retahation  upon  the  French 
for  refusing  to  Uberate  the  crews  of  forty  captured 
merchantmen,  these  forty  French  notables  were  not 
taken  as  hostages,  but  were  made  the  object  of  reprisals.^ 

^  The  case  has  been  discussed  the  mistake  of  referring  to  it  as 
above  in  §  249.  All  the  French  an  instance  of  the  taking  of  hos- 
writers  who  comment  upon  it  make       tages. 


TAKING    OF   HOSTAGES  351 

§  259.  A  new  practice  of  taking  hostages  was  resorted  Modem 
to  by  the  Germans  in  1870  during  the  Franco-German  P;^°^'?5« 

f  1  r  taking 

War  for  the  purpose  of  securmg  the  safety  of  forces  Hostages, 
against  possible  hostile  acts  by  private  inhabitants 
of  occupied  enemy  territory.  Well-known  men  were 
seized  and  detained,  in  the  expectation  that  the  popu- 
lation would  refrain  from  hostile  acts  out  of  regard  for 
the  fate  of  the  hostages.  Thus,  when  miknown  people 
frequently  wrecked  the  trains  transporting  troops,  the 
Germans  seized  prominent  enemy  citizens,  and  put 
them  on  the  engines,  a  device  which  always  proved 
effective,  and  soon  put  a  stop  to  further  train-wrecking. 
The  same  practice  was  resorted  to,  although  for  a  short 
time  only,  by  Lord  Eoberts  ^  in  1900  during  the  South 
African  War.  It  has  been  condemned  by  the  majority 
of  publicists.  But,  with  all  due  deference  to  the 
authority  of  so  many  prominent  men  who  oppose  the 
practice,  I  cannot  agree  with  their  opinion.  Matters 
would  be  different  if  hostages  were  seized,  and  exposed 
to  dangers,  for  the  purpose  of  preventing  legitimate 
hostihties  on  the  part  of  members  of  the  armed  forces 
of  the  enemy.^  But  no  one  can  deny  that  train-wrecking 
on  occupied  enemy  territory  by  private  enemy  indi- 
viduals is  an  act  which  a  belhgerent  is  justified  in  con- 
sidering and  punishing  as  war  treason.^  It  is  for  the 
purpose  of  guarding  against  an  act  of  illegitimate  war- 
fare that  these  hostages  are  put  on  the  engines.  The 
danger  to  which  they  are  exposed  comes  from  their 
fellow-citizens,  who  are  informed  that  hostages  are  on 

*  See  Section  3  of  the  Proclama-  parties  of  armed  forces  of  the  enemy, 
tion  of  Lord  Roberts,  dated  Pretoria,  Spaight,  pp.  466-470,  admits  the 
June  19,  1900,  but  this  section  was  practice  in  principle,  but  considers 
repealed  by  the  Proclamation  of  July  it  to  have  been  unjustified  during 
29,  1900.  See  Martens,  X.R.G.,  the  Franco-German  as  well  as  during 
2nd  Ser.  xxxii.  pp.  147,  149.  the    South-African    War,     because 

*  Land  War/are,  §  463,  does  not  there     was    no    certaintj'    that    the 
consider  the  practice  commendable,  train-wrecking  had  not   been   com- 
because  innocent  citizens  are  thereby  mitted    by   raiding    parties    of    the 
exposed  to  legitimate  acts  of  train-  armed  forces  of  the  enemy, 
wrecking   on    the    part    of    raiding  *  See  above,  §  255  (8). 


352       MEANS   OF   SECURING   LEGITIMATE   WARFARE 

the  engines,  and  ought  therefore  to  refrain  from  wrecking 
the  trains.  It  cannot,  and  will  not,  be  denied  that  the 
measure  is  a  harsh  one,  and  that  it  makes  individuals 
hable  to  suffer  for  acts  for  which  they  are  not  respon- 
sible. But  the  safety  of  the  troops  and  hues  of  communi- 
cation of  the  occupying  belhgerent  is  at  stake,  and  I 
doubt,  therefore,  whether  even  the  most  humane  com- 
manders will  be  able  to  dispense  with  this  measure, 
since  it  alone  has  proved  effective.  It  must  further  be 
taken  into  consideration  that  the  amount  of  cruelty 
connected  with  it  is  no  greater  than  in  reprisals,  where 
also  innocent  individuals  must  suffer  for  illegitimate 
acts  for  which  they  are  not  responsible.  Moreover,  is 
it  not  more  reasonable  to  prevent  train-wrecking  by 
putting  hostages  on  the  engines  than  to  resort  to 
reprisals  when  it  has  been  done  ?  For  there  is  no  doubt 
that  a  belhgerent  is  justified  in  resorting  to  reprisals  ^ 
in  each  case  of  train-wrecking  by  private  enemy  indi- 
viduals,^ and  no  objection  is  ever  raised  against  his  doing 
so,  although  it  is  possible  that  the  train-wrecking  was 
a  legitimate  act  committed  by  a  raiding  party  of  the 
armed  forces  of  the  enemy. 

During  the  World  War  Germany  adopted  a  terrible 
practice  of  taking  hostages  in  the  territories  occupied 
by  her  armies,  and  shooting  them  when  she  beheved  that 
civihans  had  fired  upon  German  troops.  Garner,  after 
considering  the  evidence  in  detail,  summarises  it  in  the 
following  words  :  '  It  is  clear  that  the  German  practice 
of  taking  hostages  was  very  general.  There  is  indeed 
reason  to  believe  that  it  was  resorted  to  in  most  of  the 
towns  and  villages  in  Belgium  and  France  which  fell 
under  their  occupation.     For  the  most  part,  the  pur- 

*  See  above,  §  248.  warfare  ;  see  above,  §  116,  p.  175, 
^  Belligerents  sometimes  take  hos-  n.  2,  and  §  170,  p.  241,  n.  5.  Thfe 
tages  to  secure  compliance  with  Hague  Regulations  do  not  mention 
requisitions,  contributions,  ransom  the  taking  of  hostages  for  any  pur- 
bills,  and  the  like,  but  such  cases  pose, 
have  nothing  to  do  with  illegitimate 


COMPENSATION  353 

pose  .  .  .  was  to  ensure  the  good  behaviour  of  the  in- 
habitants and  strict  obedience  to  the  German  authority. 
.  .  .  The  hostages  were  sometimes  stationed  on  bridges 
to  ensure  the  latter  against  destruction ;  sometimes 
they  were  assembled  on  the  pubhc  square  ;  frequently 
they  were  marched  in  front  of  the  German  columns  to 
protect  the  latter  against  attack,  and  the  like.  Con- 
siderable numbers  were  shot.'  ^ 


VI 

COMPENSATION 

Bonfils,  No.  1026^— Despagnet,  No.  510  bis— Umonon,  pp.  344-346— Higgins, 
pp.  260-261— Scott,  Conferences,  p.  528— Nippold,  ii.  §  24— Boidin,  pp. 
83-84— Spaight,  p.  462— Holland,  War,  No.  19— Land  Warfare,%  436— 
Hofer,  Der  Schadenersatz  im  Landkriegsrecht  (1913) — Schoen,  Die  volker- 
rechtliche  Haftung  der  Staaten  aus  unerlauhten  Handlungen  (1917),  pp. 
92-94  and  122-143— Garner,  ii.  §  580— Fauchille  in  E.G.,  xxiii.  (1916), 
pp.  280-297— Pic,  ibid.,  pp.  243-268— M6rignhac  in  B.O.,  xxiv.  (1917), 
p.  8. 

259a.  There  is  no  doubt  that,  if  a  beUigerent  can  How  the 
be  made  to  pay  compensation  for  all  damage  done  by  o  "com-^^ 
him  in  violating  the  laws  of  war,  this  will  be  an  indirect  pensation 

P  .    .  T      r  .for  Viola- 

means  of  securing  legitimate  warfare.     In  former  times  tions  of 
no  rule  existed  which  stipulated  such  compensation,  of  w^r^^ 
although,  of  course,  violation  of  the  laws  of  war  was*'"''^^ 
always  an  international  dehnquency.     On  the  contrary, 
it  was  an  estabhshed  customary  rule^  that  claims  for 
reparation  for  damages  caused  by  violations  of  the  rules 
of  legitimate  warfare  could  not  be  raised  after  the  con- 
clusion of  peace,   unless  the  contrary  was  expressly 
stipulated.^    It  was  not  until  the  Second  Hague  Con- 
ference that  matters  underwent  a  change.     In  revising 

^  i.  §  198.  this  kind  was  made  by  the  Treaty 

*  See  below,  §  274.  of   Peace   with   Germany  after   the 

'  Express  provision  for  the  pay-  World  War.     See  Articles  231  and 

ment  of  reparation  for  damages  of  232,  and  the  annex  to  Article  244, 

VOL.    II.  Z 


354       MEANS   OF   SECUEING   LEGITIMATE   WARFARE 

the  Convention  concerning  the  Laws  and  Customs  of 
War  on  Land,  besides  other  alterations,  it  adopted  a  new 
article  (3)  which  enacts  that  a  belhgerent  who  \aolates 
the  provisions  of  the  Hague  Regulations,  shall,  if  the 
case  demand,  be  liable  to  make  compensation,  and  that 
he  shall  be  responsible  for  all  acts  committed  by  persons 
forming  part  of  his  armed  forces. 

Germany,    on   whose   initiative   this   principle   was 
adopted,  proposed  two  articles  concerning  the  matter, 
the  one  deahng  with  the  payment  of  compensation  for 
violations  of  the  Hague  Regulations  with  regard  to 
subjects  of  neutral  States,^  and  the  other  for  violations 
of  these  Regulations  with  regard  to  enemy  subjects. 
The  conference,  however,  preferred  to  make  no  dis- 
tinction between  the  different  cases  of  violation,  but  to 
adopt  the  general  principle. 
Compen-       §  2595.  It  is  apparent  that  Article  3  of  Convention  rv. 
viok-  °^  enacts  two  different  rules  :   (1)  that  a  belhgerent  who 
tions  of     yiolates  the  Hague  Regulations  shall,  if  the  case  demand, 

the  Hague  <-'  <--'  /  , 

Reguia-  pay  compensation  ;  (2)  that  a  belhgerent  is  responsible 
for  all  acts  committed  by  any  persons  forming  part  of  his 
armed  forces. 

To  take  this  second  rule  first,  the  responsibihty  of  a 

State  for  internationally  illegal  acts  on  the  part  of 

members  of  its  armed  forces  is,  provided  the  acts  have 

not  been  committed  by  its  command  or  authorisation, 

only   a    vicarious   responsibihty,    but    nevertheless   it 

must,  as  was  pointed  out  above,^  pay  damages  for  these 

acts  when  required.    For  this  reason.  Article  3  did  not 

create  a  new  rule  in  so  far  as  it  enacted  that  belhgerents 

must  pay  for  damage  caused  by  members  of  their  forces. 

On  the  other  hand,  the  rule  that  compensation  must 

be   paid   by   belhgerents   for   damage    done   through 

violations  of  the  Hague  Regulations,  was  a  new  rule, 

at  any  rate  in  so  far  as  it  is  laid  down  in  a  general  way. 

1  See  below,  §  357.  *  vol.  i.  §  163. 


COMPENSATION  355 

If  interpreted  according  to  the  letter,  Article  3  of 
Convention  iv.  provides  for  payment  of  compensation 
for  violations  of  the  Hague  Regulations  only,  and  not 
for  violations  of  other  rules  of  International  Law  con- 
cerning land  warfare  or  even  concerning  sea  warfare. 
I  have,  however,  no  doubt  that  the  Powers  would  recog- 
nise that  the  principle  of  Article  3  must  find  apphcation 
to  any  rule  of  the  laws  of  war,  by  the  violation  of  which 
subjects  of  the  enemy,  or  of  neutral  States,  suffer 
damage.  For  instance,  if  the  commander  of  a  naval 
force,  in  contravention  of  Hague  Convention  ix.,  were 
to  bombard  an  undefended  place,  compensation  could 
be  claimed  for  such  subjects  of  the  enemy  and  of  neutral 
States  as  suffered  damage  through  the  bombardment. 

However,  Article  3,  although  it  estabhshes  the 
obhgation  to  pay  compensation,  does  not  stipulate 
anything  concerning  the  time,  or  the  way,  in  which 
claims  for  compensation  are  to  be  settled.  This  is 
clearly  a  case  for  arbitration,  and  it  is  to  be  hoped 
that  an  international  conference  will  make  arbitration 
obhgatory  for  claims  for  compensation  arising  from 
violations,  on  the  part  of  a  belligerent,  of  the  Hague 
Regulations  as  well  as  of  other  laws  of  war. 


CHAPTER  YII 

END  OF  WAR,  AND  POSTLIMINIUM 

I 

ON  TERMINATION  OF   WAR  IN  GENERAL 

Hall,  §  197— Lawrence,  217— Phillimore,  iii.  §  510— Taylor,  §  580— Moore, 
vii.  §  1163— Heffter,  §  176— Kirchenheim  in  Holtzendorff,  iv.  pp.  791- 
792— Ullmann,  §  198— Bonfils,  No.  1692— M^rignhac,  iii".  pp.  121-133 
— Despagnet,  No.  605— Calvo,  v.  §  3115— Fiore,  iii.  No.  1693— Martens, 
ii.  §  128 — Longuet,  §  155 — Charleville,  La  Validity  juridigue  des  Actes 
de  rOccupant  en  Pays  occupd  (1902) — Focherini,  II  Postliminio  nel 
moderno  Diritto  intemazionale  (1908) — Phillipson,  Termination  of  War 
(1916). 

War  a  §  260.  The  normal   condition   between   two   States 

mry  Con-  being  peace,  war  can  never  be  more  than  a  temporary 
dition.  condition ;  whatever  may  have  been  the  cause,  or 
causes,  of  a  war,  it  cannot  possibly  last  for  ever.  For 
either  the  purpose  of  war  will  be  reahsed,  and  one 
belHgerent  will  be  overpowered  by  the  other,  or  both 
will  sooner  or  later  be  so  exhausted  by  their  exertions 
that  they  will  desist  from  the  struggle. 
Three  §  261.  A  War  may  be  terminated  in  three  different 

Te°rmina^  ways.  (1)  BelHgereuts  may  abstain  from  further  acts 
tion  of  of  war,  and  glide  into  peaceful  relations  without  ex- 
pressly making  peace  through  a  special  treaty ;  (2) 
they  may  formally  estabhsh  the  condition  of  peace 
through  a  special  treaty  of  peace ;  (3)  a  belhgerent 
may  end  the  war  through  subjugation  of  his  adversary.^ 

^  That  a  civil  war  may  come  to  an  war  and  other  war  in  a  case  of  sub- 
end  through  simple  cessation  of  jugation.  For  to  terminate  a  civil 
hostilities,  or  through  a  treaty  of  war,  conquest  and  annexation,  which 
peace,  need  hardly  be  mentioned.  together  constitute  subjugation,  are 
But  it  is  of  importance  to  state  that  unnecessary  (see  below,  §  264) ;  con- 
there   is  a  difference  between   civil  quest  alone  ia  sufficient. 


War 


SIMPLE   CESSATION   OF   HOSTILITIES  357 

II 

SIMPLE   CESSATION    OF   HOSTILITIES 

Hall,  §  203— Phillimote,  iii.  §  oil— Taylor,  §  r>S4— Bluntschli,  §  700— 
Heffter,  §  177— Kircheiiheira  in  Holtzfudorff,  iv.  p.  793— Ullmann,  § 
198— Bonfils,  No.  1693— Despagnet,  No.  605— Nys,  iii.  p.  738— Rivier, 
ii.  pp.  435-436— Calvo,  v.  §  3116— Fiore,  iii.  No.  1693— Martens,  ii. 
§  128— Longuet,  §  155— M6rignhac,  iii".  p.  121— Fillet,  p.  370— Phillip- 
son,  Termination  of  War  (1916),  pp.  3-8. 

§  262.  The  regular  modes  of  termination  of  war  are  Excep- 
treaties  of  peace  or  subj  ligation  ;  but  cases  have  occurred  occui. 
in  which  simple  cessation  of  all  acts  of  war  on  the  part  rence  of 
of  both  belhgerents  has  actually  and  informally  brought  Cessation 
the  war  to  an  end.     Thus  ended  in  1716  the  war  between  °fii^^ 
Sweden  and  Poland,  in  1720  the  war  between  Spain  and 
France,  in  1801  the  war  between  Russia  and  Persia, 
in  1867  the  war  between  France  and  Mexico,  and  in 
the  same  year  the  war  between  Spain  and  Chih.     Thus 
ended  also  the  World  War  as  between  Germany  and 
China,  since  China  did  not  sign  the  Treaty  of  Peace 
with  Germany.     So  also  the  World  War  as  between 
the  United  States  and  Germany  will  have  ended,  unless 
a  separate  treaty  of  peace  is  negotiated  between  these 
two  powers.^ 

Although  termination  of  war  through  simple  cessa- 
tion of  hostihties  is  for  many  reasons  inconvenient, 
and  is,  therefore,  as  a  rule  avoided,  it  may  nevertheless 
in  the  future,  as  in  the  past,  occasionally  occur. 

§  263.  Since,  in  the  case  of  termination  of  war  through  EflFect  of 
simple  cessation  of  hostihties,  no  treaty  of  peace  em-  J^o^^Jf*' 
bodies   the   conditions   of   peace   between   the   former  War 
belhgerents,  the  question  arises  whether  the  status  which  simple 
existed  between  the  parties  before  the  outbreak  of  war,  of^5os^°° 

till  ties. 
^  Whereasthe  war  between  Prussia        with  others,  Prussia  never  concluded 
and  several  German  States  in  1866        a  treaty  of  peace  with  the   Princi- 
came  to  an  end  through  subjugation        palitj'  of    Lichtenstein,    which    was 
of  some  States  and  treaties  of  peace       also  a  party  to  the  war. 


358  END   OF  WAR,   AND   POSTLIMINIUM 

the  status  quo  ante  helium,  should  be  revived,  or  the 
status  which  exists  between  the  parties  at  the  time 
when  they  simply  ceased  hostihties,  the  status  quo  'post 
helium  (the  uti  possidetis),  can  be  upheld.     The  majority 
of  pubhcists  ^  correctly  maintain  that  the  status  which 
exists  at  the  time  of  cessation  of  hostihties  becomes 
silently   recognised    through   such   cessation,    and   is, 
therefore,  the  basis  of  the  future  relations  of  the  parties. 
This  question  is  of  the  greatest  importance  regarding 
enemy  territory  mihtarily  occupied  by  a  belHgerent 
at  the  time  hostihties  cease.    According  to  the  correct 
opinion,  it  can  be  annexed  by  the  occupier,  the  adversary, 
through  the  cessation  of  hostihties,  having  dropped  all 
rights  he  possessed  over  it.     On  the  other  hand,  termina- 
tion of  war  through  cessation  of  hostihties  does  not 
dispose  of  claims  of  the  parties  which  have  not  been 
settled  by  the  actual  position  of  affairs  at  the  termina- 
tion of  hostihties,  and  it  remains  for  the  parties  to  settle 
them  by  special  agreement,  or  to  let  them  stand  over. 


Ill 

SUBJUGATION 

Vattel,  iii.  §§  199-203— Hall,  §§  204-205— Lawrence,  §  77— Phillimore,  hi. 
§  512— Halleck,  i.  pp.  501-534— Taylor,  §§220,  585-588— Moore,  i.  §87— 
Walker,  §  11— Wheaton,  §  165— Bluntschli,  §§  287-289,  701-702— HeflFter, 
§  178 — Kirchenheim  in  Holtzendorff,  iv.  p.  792 — Liszt,  §  10 — Ullmann, 
§§  92,  97,  197— Bonfils,  Nos.  535  and  1694— Despagnet,  Nos.  387-390, 
605— Rivier,  ii.  pp.  436-441— Nys,  iii.  p.  738— Calvo,  v.  §§  3117-3118— 
— Fiore,  ii.  No.  863,  iii.  No.  1693,  and  Code,  Nos.  1083-1086— Martens, 
i.  §  91,  ii.  §  128— Longuet,  §  155— Fillet,  p.  371— Holtzendorff,  Erohe- 
rungen  uiul  Eroberungsrecht  (1872) — Heimburger,  Der  Erwerh  der 
Gebietshoheit  (1888),  pp.  121-132— Westlake  in  the  Laio  Quarterly 
Reviev),  xvii.  (1901),  p.  392,  now  reprinted  in  Westlake,  Papers,  pp. 
475-489— Phillipson,  Termination  of  War  (1916),  pp.  8-51. 

§  264.  Subjugation   must   not   be   confounded   with 
conquest,  although  there  can  be  no  subjugation  without 

^  See,    however,    Phillimore,    iii.    §   511,    who   maintains  that  the  statue 
qvx>  ante  htllum  has  to  be  revived. 


SUBJUGATION  359 

conquest.  Conquest  is  taldng  possession  of  enemy  Subjuga- 
territory  by  military  force,  and  is  completed  as  soon  coiriradis- 
as  the  territory  is  effectively  ^  occupied.  Now  it  is  con^u^er 
obvious  that  conquest  of  a  fart  of^enemy^territory  has 
nothing  to  do  with  subjugation,  because  the  enemy 
may  well  reconquer  it.  Even  the  conquest  of  the  whole 
enemy  territory  need  not  necessarily  involve  subjuga- 
tion ;  for  in  a  war  between  more  than  two  belhgerents, 
the  troops  of  one  of  them  may  evacuate  their  own 
country  and  join  the  allied  army,  so  that  the  armed 
contention  is  continued,  although  the  territory  of  one 
of  the  alhes  is  completely  conquered.  Again,  a  belhger- 
ent,  although  he  has  annihilated  the  forces  and  con^- 
quered  the  whole  of  the  territory  of  his  adversary,  and 
thereby  brought  the  armed  contention  to  an  end,'^  may 
nevertheless  not  choose  to  exterminate  the  enemy  State 
by  annexing  the  conquered  territory,  but  may  conclude 
a  treaty  of  peace  with  the  expelled  or  imprisoned  head 
of  the  defeated  State,  re-estabhsh  its  Government,  and 
hand  back  to  it  the  whole  or  a  part  of  the  conquered 
territory.  Subjugation  takes  place  only  when  a  belh- 
gerent,  after  having  annihilated  the  forces  and  con- 
quered the  territory  of  his  adversary,  destroys  his 
existence  by  annexing  the  conquered  territory.  Sub- 
jugation may,  therefore,  correctly  be  defined  as  exter- 
mination in  war  of  one  belligerent  by  another  through 
annexation  ^  of  the  former's  territory  after  conquest,  the 
enemy  forces  Jiaving  been  annihilated.^ 

§  265.  Although   complete   conquest,   together   with 

^  The  conditions  of  effective  occu-  been  pointed  out  above,  §  261. 
pation  have  been  discussed  above  in  *  Premature   annexation   can    be- 

§  167.     Regarding  subjugation  as  a  come  valid  through  the  occupation 

mode  of  acquisition  of  territory,  see  becoming  soon  afterwards  effective. 

above,  vol.  i.  §§  236-241.  Thus,    although    the   annexation    of 

*  The  continuation  of  guerilla  war  the    South    African     Republic,     on 

after  the  termination  of  a  real  war  is  September  1,  1900,  M-as  premature, 

discussed  above  in  §  60.  it  became  valid  through  the  ocoupa- 

'  That  conquest  alone  is  sufficient  tion  becoming  effective  in  1901.     See 

for  the  termination  of  civil  wars  has  above,  §  167  n. 


360  END   OF   WAR,    AND   POSTLIMINIUM 

Subjuga-   annihilation  of   the   enemy  forces,   brings  the  armed 


tion  a 


End  of 
War, 


Formal  Contention,  and  thereby  the  war,  actually  to  an  end, 
the  formal  end  of  the  war  is  thereby  not  yet  reahsed, 
as  everything  depends  upon  the  resolution  of  the 
victor  regarding  the  fate  of  the  vanquished  State.  If 
he  be  wilhng  to  re-estabhsh  the  captive  or  expelled 
head  of  the  vanquished  State,  it  is  a  treaty  of  peace 
concluded  with  the  latter  which  terminates  the  war. 
But  if  he  desires  to  acquire  the  whole  of  the  conquered 
territory  for  himself,  he  annexes  it,  and  thereby  formally 
ends  the  war  through  subjugation.  That  the  expelled 
head  of  the  vanquished  State  protests  and  keeps  up  his 
claims,  matters  as  httle  as  do  protests  of  neutral  States. 
These  protests  may  be  of  pohtical  importance  for  the 
future  ;  legally  they  are  of  no  importance  at  all. 

History  presents  numerous  instances  of  subjugation. 
Although  no  longer  so  frequent  as  in  former  times, 
subjugation  is  not  at  all  of  rare  occurrence.  Thus, 
modern  Italy  came  into  existence  through  the  sub- 
jugation by  Sardinia  in  1859  of  the  Two  Sicihes,  the 
Grand  Dukedom  of  Tuscany,  the  Dukedoms  of  Parma 
and  Modena,  and  in  1870  the  Papal  States.  Thus, 
further,  Prussia  subjugated  in  1866  the  Kingdom  of 
Hanover,  the  Dukedom  of  Nassau,  the  Electorate  of 
Hesse- Cassel,  and  the  Free  Town  of  Frankfort-on-the- 
Main ;  and  Great  Britain  annexed  in  1900  the  Orange 
Free  State  and  the  South  African  Repubhc.^ 

^  Since  Great  Britain  annexed  embodying  the  terms  of  surrender  of 
these  territories  in  1900,  the  agree-  the  routed  remnants  of  the  Boer 
ment  of  1902,  regarding  'Terms  of  forces  had,  therefore,  no  interna  tion- 
Surrender  of  the  Boer  Forces  in  the  ally  legal  basis  (see  also  below,  §  274, 
Field ' — see  Pari.  Papers,  South  p.  369  n. ).  The  case  would  be  differ- 
Africa  (1902),  Cd.  1096 — was  not  a  ent  if  the  British  Government  had 
treaty  of  peace,  and  the  South  really — as  Sir  Thomas  Barclay  as- 
African  War  came  formally  to  an  serted  in  the  Law  Quarterly  Review, 
end  through  subjugation,  although —  xxi.  (1905),  pp.  303,  307 — recognised 
see  above,  §  167  n. — the  proclaraa-  the  existence  of  the  Government  of 
tion  of  the  annexation  was  some-  the  South  African  Republic  down 
what   premature.      The    agreement  to  May  31,  1902. 


TREATY  OF  PEACE  361 

IV 

TREATY   OF   PEACE 

Grotius,  iii.  o.  20— Vattel,  iv.  ?§  9-18— Philli more,  iii.  §§  513-517— Halleck, 
i.  pp.  306-324— Taylor,  §§  590-592— Moore,  vii.  §  1163— Wheaton,  §§  538- 
543— Bluntschli,  §§  703-707— Heffter,  §  179— Kirchenheim  in  Holtzen- 
dorff,  iv.  pp.  794-804— Ullmann,  §  198— Bonfils,  Nos.  1696-1697,  1703- 
1705 — Despagnet,  Nos.  606-611 — Rivier,  ii.  pp.  443-453 — ^Nye,  iii.  pp. 
737-753— Calvo,  v.  §§  3119-3136— Fiore,  iii.  Nos.  1694-1700,  and  Code, 
Nos.  1954-1964— Martens,  ii.  §  128— Longuet,  g§  156-164— M6rignhac, 
iii".  pp.  121-123 — Pillet,  pp.  372-375 — Phillipson,  Termination  of  War 
(1916),  pp.  75-204. 

§  266.  Although  occasionally  war  ends  through  simple  Treaty  of 
cessation  of  hostihties,  and  although  subjugation  is  not  ^^^t®*^^® 
at  all  rare  or  irregular,  the  most  frequent  end  of  war  frequent 
is  a  treaty  of  peace.    Many  publicists  correctly  call  War. 
a   treaty  of  peace   the   normal   mode  of   terminating 
war.     Simple   cessation  of   hostihties   is   certainly   an 
irregular  mode,   while  subjugation  is  in  most  cases, 
either  not  within  the  scope  of  the  intention  of  the  victor, 
or  not  realisable  ;    and  it  is  quite  reasonable  that  a 
treaty  of  peace  should  be  the  normal  end  of  war.     States 
which  are  driven  from  disagreement  to  war  will,  sooner 
or  later,  when  the  fortune  of  war  has  given  its  decision, 
be  convinced  that  the  armed  contention  ought  to  be 
terminated.    Thus  a  mutual  understanding  and  agree- 
ment upon  certain  terms  is  the  normal  mode  of  ending 
the  contention ;    and  it  is  a  treaty  of  peace  which 
embodies  such  understanding. 

§  267.  However,  as  the  outbreak  of  war  interrupts  Peace 
all  regular  non-hostile  intercourse  between  belhgerents,  ^lof s.  ^^ 
negotiations  for  peace  are  often  difficult  of  initiation. 
Each  party,  although  wilhng  to  negotiate,  may  have 
strong  reasons  for  not  opening  negotiations.  Good 
offices  and  mediation  on  the  part  of  neutrals,  therefore, 
are  often  of  great  importance,  as  thereby  negotiations 
are  called  into  existence  which  otherwise  might  have 
been  long  delayed.     But  neither  formal  nor  informal 


362 


END   OF   WAR,    AND   POSTLIMINIUM 


peace  negotiations  ifso  facto  bring  hostilities  to  a  stand- 
still, although  a  partial  or  general  armistice  may  be 
concluded  for  the  purpose  of  such  negotiations.  The 
fact  that  peace  negotiations  are  going  on  directly  be- 
tween beUigerents  does  not  create  any  non-hostile 
relations  between  them  apart  from  those  negotiations 
themselves.  Such  negotiations  can  take  place  by  the 
exchange  of  letters  between  the  belhgerent  Governments, 
or  through  special  negotiators,  who  may  meet  on  neutral 
territory,  or  on  the  territory  of  one  of  the  belhgerents. 
In  case  they  meet  on  belhgerent  territory,  the  enemy 
negotiators  are  inviolable,  and  must  be  treated  on  the 
same  footing  as  bearers  of  flags  of  truce,  if  not  as  diplo- 
matic envoys.  For  it  can  happen  that  a  belhgerent 
receives  an  enemy  diplomatic  envoy  for  the  purpose 
of  peace  negotiations.^    Be  that  as  it  may,  negotiations, 


^  The  World  War  (except  as 
between  Germany  and  China,  and  as 
between  the  United  States  and  those 
of  the  Central  Powers  with  which 
she  was  at  war — see  above,  §  262) 
ended  as  follows  : — On  October  3-6, 
1918,  the  German  Government  for- 
warded to  the  President  of  the 
United  States  of  America  through 
the  Swiss  diplomatic  channel  a  Note 
requesting  him  to  take  steps  for  a 
general  armistice  (see  above,  §  233) 
and  for  the  restoration  of  peace, 
suggesting  as  a  basis  for  peace 
negotiations  the  programme  laid 
down  by  him  in  his  Message  to 
Congress  of  January  8,  1918  (which 
contained  '  the  fourteen  points  '), 
and  in  his  subsequent  pronounce- 
ments, particularly  in  his  Address 
of  September  27,  1918  (see  A.J.,  xiii. 
(1919),  Supplement,  p.  85).  After 
an  exchange  of  Notes  the  President 
informed  Germany  on  November  5, 
1918  [ihid.,  p.  93)  that  he  had  been 
in  communication  with  the  Govern- 
ments associated  with  the  United 
States  in  the  war,  and  that,  subject 
to  two  qualifications  as  to  reparation 
and  the  so-called  '  freedom  of  the 
seas,'  they  were  prepared  to  conclude 
peace  on  the  suggested  basis.  A 
general    armistice    was    signed    on 


November  11  (see  above,  §  233),  and 
a  peace  conference,  at  which  all  the 
victorious  and  none  of  the  van- 
quished Powers  were  represented, 
assembled  at  Paris  in  January  1919 
(see  above,  vol.  i.  §  506).  The  draft 
treaty  was  handed  to  the  German 
delegation,  which  had  been  sum- 
moned to  Paris  to  receive  it,  in  May 

1919.  Germany  stated  her  objections 
in  writing,  and  the  treaty,  after 
some  modification,  was  signed  on 
June  ^8,  1919.  There  was  no  pre- 
armistice  agreement  as  to  the  basis 
of  peace  negotiations  between  the 
Allied  and  Associated  Powers  and 
any  of  Germany's  allies.  Armistices 
were  granted  to  them  (see  above, 
§  233),  and  eventually  draft  treaties 
were  presented  to  each  of  them  for 
their  comment  in  writing  and  sub- 
sequent signature  (see  above,  vol.  i. 
§  506,  to  which  it  is  now  possible  to 
add  that  the  Treaty  of  Peace  with 
Austria  came  into  force  on  July  16, 

1920,  and  that  with  Bulgaria  on 
August  9,  1920.  The  Treaty  of 
Peace  with  Hungary  was  signed  at 
Trianon  on  June  4,  1920  ;  the  Treaty 
of  Peace  with  Turkey  was  signed  at 
Sevres  on  August  10,  1920 ;  but 
these  two  treaties  have  not  yet 
(February  1921)  come  into  force.  | 


TREATY   OF  PEACE  363 

wherever  taking  place  and  by  whomsoever  conducted, 
may  always  be  broken  of!  before  an  agreement  is 
arrived  at. 

§  268.  Although  ready  to  terminate  the  war  through  Pre- 
a  treaty  of  peace,  belligerents  are  frequently  not  able  oTpeace^ 
to  settle  all  the  terms  at  once.  In  such  cases  hostilities 
are  usually  brought  to  an  end  through  so-called  pre- 
hminaries  of  peace,  the  definitive  treaty  to  take  the 
place  of  the  prehminaries  being  concluded  later  on. 
Such  prehminaries  are  a  treaty  in  themselves,  embodying 
an  agreement  between  the  parties  regarding  such  terms 
of  peace  as  are  essential.  Prehminaries  are  as  binding 
as  any  other  treaty,  and  therefore  need  ratification. 
Very  often,  but  not  necessarily,  the  definitive  treaty 
of  peace  is  concluded  at  a  place  other  than  that  at 
which  the  prehminaries  were  settled.  Thus,  the  war 
between  Austria,  France,  and  Sardinia  was  ended  by 
the  Prehminaries  of  Villafranca  of  July  11,  1859,  yet 
the  definitive  treaty  of  peace  was  concluded  at  Zurich 
on  November  10,  1859.  The  war  between  Austria  and 
Prussia  was  ended  by  the  Prehminaries  of  Nickolsburg 
of  July  26,  1866,  yet  the  definitive  treaty  of  peace 
was  concluded  at  Prague  on  August  23.  In  the 
Franco-German  War  the  Prehminaries  of  Versailles  of 
February  26,  1871,  were  the  precursor  of  the  definitive 
treaty  of  peace  concluded  at  Frankfort  on  May  10, 
1871.1 

The  purpose  for  which  prehminaries  of  peace  are 
agreed  upon  makes  it  obvious  that  such  essential 
terms  as  are  stipulated  by  them  are  the  basis  of  the 
definitive  treaty  of  peace.  It  may  happen,  however, 
that  neutral  States  protest  for  the  purpose  of  preventing 

^  No  preliminaries  of  peace  M'ere  August  29,  1905,  the  treaty  of  peace 

agreed  upon  at  the  end  of  the  Russo-  was    signed    on    September   5,    and 

Japanese  Wax-.     After  negotiations  ratified  on  October  1.      Nor  at  the 

at  Portsmouth  (New  Hampshire)  had  end  of  the  World  War  (see  above, 

led    to    a    final    understanding    on  §  267  n.  and  vol.  i.  §  506). 


364  END   OF  WAK,    AND  POSTLIMINIUM 

this.     Thus,  when  the  war  between  Russia  and  Turkey 
had    been   ended    through    the    Prehminaries    of    San 
Stefano  of  March  3,  1878,  Great  Britain  protested,  a 
congress  met  at  Berhn,  and  Russia  had  to  be  content 
with  less  favourable  terms  of  peace  than  those  stipulated 
at  San  Stefano. 
Form  and      §  269.  International  Law  does  not  contain  any  rules 
Peace       regarding  the  form  of  peace  treaties  ;  they  may,  there- 
Treaties.   fQj.g^  i^g  concluded  verbally  or  in  writing.     But  their 
importance  makes  the  parties  always  conclude  them 
in  writing,  and  there  is  no  instance  of  a  treaty  of  peace 
verbally  concluded. 

According  to  the  different  points  stipulated,  it  is 
usual  to  distinguish  different  parts  within  a  peace  treaty. 
Besides  the  preamble,  there  are  general,  special,  and 
separate  articles.  General  articles  are  those  which 
stipulate  the  points  which  are  to  be  agreed  upon  in 
every  treaty  of  peace,  such  as  the  date  of  termination 
of  hostihties,  the  release  of  prisoners  of  war,  and  the 
hke.  Special  articles  are  those  which  stipulate  the 
special  terms  of  the  particular  agreement  of  peace. 
Separate  articles  are  those  which  stipulate  points  with 
regard  to  the  execution  of  the  general  and  special 
articles,  or  which  contain  reservations  and  other  special 
remarks  by  the  parties.^  Sometimes  additional  articles 
occur.  They  are  stipulations  agreed  upon  in  a  special 
treaty  and  intended  to  supplement  the  treaty  of  peace.^ 
§  270.  As  the  treaty-making  power  is,  according  to 
the  Law  of  Nations,  in  the  hands  of  the  head  ^  of  the 

^  The     Treaty     of     Peace     M-ith  the  substantive  part  of  the  treaty. 

Germany  (see  above,  vol.  i.  §  oGSe),  At   the   end   come   general   articles 

upon  which  all  the  treaties  of  peace  providing  for  ratification  and  coming 

after  the  World  War  were  modelled,  into  force,  followed  by  the  signatures 

first   names   the   parties,  then  in  a  and  date  and  place  of  execution. 

preamble  recites  the  origin  of   the  .  -r<       •     ^  i  i.  

'^            J  i-i.            •  i-        4.V.  *  lor   instance,  a  supplementary 

war  and  the  armistice,  then  names  ^       i  i.    ^i     rr.      i.      r  t>              JL 

the  plenipotentiaries,  and  then  fixes  P^°t°col  to  the  Treaty  of  Peace  with 

the  date  of  the  end  of  war  and  re-  C^^rmany  was  signed   on   the   same 

sumption    of    diplomatic    relations.  day  as  the  treaty  itself . 

Next   follows,    in   fifteen   chapters,  '  See  above,  vol.  i.  §  495. 


TREATY   OF   PEACE  365 

State,  it  is  he  who  is  competent  to  conclude  peace.  Compe- 
But  just  as  constitutional  restrictions  imposed  upon  ^"ciude 
heads  of  States  regarding  their  general  power  of  con-  ^®'^°®- 
eluding  treaties  ^  are  of  importance  for  International 
Law,  so  are  constitutional  restrictions  imposed  upon 
heads  of  States  regarding  their  competence  to  make 
peace.  Therefore,  treaties  of  peace  concluded  by  heads 
of  States  which  violate  constitutional  restrictions  are 
not  binding  upon  the  States  concerned,  because  the 
heads  have  exceeded  their  powers.  The  constitutions 
of  the  several  States  settle  the  matter  differently,  and 
it  is  not  at  all  necessary  that  the  power  of  declaring  war 
and  that  of  making  peace  should  be  vested  by  them  in 
the  same  hands.  In  Great  Britain  the  power  of  the  Crown 
to  declare  war  and  to  make  peace  is  indeed  unrestricted. 
But  the  constitutions  of  other  States  provide  otherwise.^ 

The  controverted  question  as  to  whether  a  head  of 
a  State  who  is  a  prisoner  of  war  is  competent  to  make 
peace  ought  to  be  answered  in  the  negative.  The 
reason  is  that  the  head  of  a  constitutional  State,  al- 
though he  does  not  by  becoming  a  prisoner  of  war  lose 
his  position,  nevertheless  thereby  loses  the  power  of 
exercising  the  rights  connected  therewith.^ 

§271.  Unless  the  treaty  provides  otherwise,*  peace  Date  of 
commences  with  the  signing  of  the  peace  treaty.  Should  ^^^°^- 
it  not  be  ratified,  hostihties  may  be  recommenced,  and 
the  unratified  peace  treaty  is  considered  as  an  armistice. 
Sometimes,  however,  the  peace  treaty  fixes  a  future 
date  for  the  commencement  of  peace,  stipulating  that 
hostihties  must  cease  on  a  certain  future  day.^    This 

^  See  above,  vol.  i.  §  497.  had  been  drawn    up  recording   the 

*  See  examples  in  Rivier,  ii.  p.  deposit  of  ratifications  by  the  van- 
445.  quished    Power    and    certain    other 

*  See  Vattel,  iv.  §  13.  Powers.     See  above,  vol.  i.  §  568e. 

*  The  Treaties  of  Peace  after  the  '  This  was  unnecessary  in  the 
World  War  provided  that  peace  treaties  after  the  World  War  because 
should  commence  when  they  came  general  armistices  had  long  ago  been 
into  force,  i.e.  when  a  proems- verbal  concluded. 


366  END   OF  WAR,    AND   POSTLIMINIUM 

is  the  case  when  war  is  waged  in  several,  or  widely 
separated,  parts  of  the  world,  so  that  it  is  impossible 
at  once  to  inform  the  opposing  forces  of  the  conclusion 
of  peace.^  Different  dates  may  even  be  stipulated  for 
the  termination  of  hostihties  in  different  parts  of  the 
world. 

The  question  has  arisen  whether,  in  a  case  where  a 
peace  treaty  provides  a  future  date  for  the  termination 
of  hostihties  in  distant  parts,  if  the  forces  in  those 
parts  hear  of  the  conclusion  of  peace  before  that  date, 
they  must  abstain  at  once  from  further  hostihties. 
Most  pubhcists  correctly  answer  this  question  in  the 
afi&rmative.  But  the  French  Prize  Courts  in  1801 
condemned  as  good  prize  the  Enghsh  vessel  Swineherd 
which  was  captured  by  the  French  privateer  Bellmia 
in  the  Indian  Seas  within  the  period  of  five  months 
fixed  by  the  Peace  of  Amiens  for  the  termination  of 
hostihties  in  those  seas.^ 


EFFECTS  OF  TREATY  OF  PEACE 

Grotius,  iii.  c.  20— Vattel,  iv.  §§  19-23— Hall,  §§  198-202— Lawrence,  §  218 
— Phillimore,  iii.  §§518-528— Halleck,  i.  pp.  328-348— Taylor,  §§581-683 
— Wheaton,  §§  544-547— Bluntschli,  §§  708-723— Heffter,  §§  180-183,  184a 
— Kirehenheim  in  Holtzendorff,  iv.  pp.  804-817 — Ullmann,  §  199 — Bonfils, 
Nos.  1698-1702— Despagnet,  No.  607— Rivier,  ii.  pp.  454-461— Nys,  iii, 
pp.  747-757— Calvo,  v.  §§  3137-3163— Fiore,  iii.  Nos.  1701-1703,  and  Code, 
Nos.  1965-1985— Martens,  ii.  §  128— Longuet,  §§  156-164— M6rignhac, 
iii".  pp.  124-132— Pillet,  pp.  375-377— Phillipson,  Termination  of  War 
(1916),  pp.  214-277. 

§  272.  The  chief  and  general  effect  of  a  peace  treaty 
is  the  restoration  of  a  condition  of  peace  between  the 

^  The     ending      of     the     Russo-  treaty  was  not  signed  until  September 

Japanese    War  was  quite    peculiar.  14,     and    hostilities    went    on     till 

Although  the  treaty  of   peace  was  September  16. 
signed  on  September   5,    1905,   the 

agreement  concerning  an  armistice  *  Details    in    Hall,    §    199 ;     see 

pending    ratification    of    the    peace  also  Phillimore,  iii.  §  521. 


1 


EFFECTS  OF  TREATY  OF  PEACE        367 

former  belligerents.    As  soon  as  the  treaty  is  ratified  Restora- 
or  otherwise  comes  into  force,  all  rights  and  duties  condition 
which  exist  in  time  of  peace  between  the  members  of  ^^  ^"^°"- 
the  family  of  nations  are  i'pso  facto,  and  at  once,  revived 
between  the  former  belligerents. 

On  the  one  hand,  all  acts  legitimate  in  warfare  cease 
to  be  legitimate.  Neither  contributions  nor  requisitions, 
nor  attacks  on  members  of  the  armed  forces  or  on 
fortresses,  nor  capture  of  ships,  nor  occupation  of 
territory,  are  any  longer  lawful.  If  forces,  ignorant  of 
the  conclusion  of  peace,  commit  such  hostile  acts,  the 
condition  of  things  at  the  time  peace  was  concluded 
must  as  far  as  possible  be  restored.^  Thus,  ships 
captm'ed  must  be  set  free,  territory  occupied  must  be 
evacuated,  members  of  armed  forces  taken  prisoners 
must  be  hberated,  contributions  imposed  and  paid 
must  be  repaid. 

On  the  other  hand,  all  peaceful  intercourse  between 
the  former  belhgerents,  and  between  their  subjects,  is 
resumed  as  before  the  war.  Thus  diplomatic  inter- 
course is  restored,  and  consular  officers  recommence 
their  duties.^ 

The  condition  of  peace  created  by  a  peace  treaty  is 
legally  final,  in  so  far  as  the  order  of  things  set  up  and 
stipulated  by  the  treaty  of  peace  is  the  settled  basis  of 
future  relations  between  the  parties,  however  conten- 
tious the  matters  concerned  may  have  been  before  the 
outbreak  of  war.  In  concluding  peace,  the  parties 
expressly  or  imphcitly  declare  that  they  have  come 
to  an  understanding  regarding  such  settled  matters. 
They  may  indeed  make  war  against  each  other  in  future 
on  other  grounds,  but  they  are  legally  bound  not  to 
go  to  war  over  matters  settled  by  a  previous  treaty  of 

^  The  Mentor, {\1%%)  1  C.  Rob.  179.  of  hostilities. 
Matters  are,  of  course,  different  in 

case  a  future  date — see  above,  §  271  ^  As    to    pre-war    contracts,    see 

— is  stipulated  for  the  termination  above,  §  101. 


368  END  OF  WAR,    AND  POSTLIMINIUM 

peace.  That  the  practice  of  States  does  not  always 
conform  with  this  rule  is  a  well-known  fact  which, 
although  it  discredits  the  rule,  cannot  shake  its  theo- 
retical vahdity. 
Principle  §  273.  Uuless  the  parties  stipulate  otherwise,  the 
Potsi-  efiect  of  a  treaty  of  peace  is  that  conditions  remain  as 
^*'"-  at  the  conclusion  of  peace.  Thus,  all  moveable  State 
property,  such  as  munitions,  provisions,  arms,  money, 
horses,  means  of  transport,  and  the  Hke,  seized  by  an 
invading  belhgerent,  remain  his  property,  as  likewise 
do  the  fruits  of  immoveable  property  seized  by  him. 
Thus  further,  if  nothing  is  stipulated  regarding  con- 
quered territory,  it  remains  in  the  hands  of  the  possessor, 
who  may  annex  it.  But  it  is  nowadays  usual,  although 
not  at  all  legally  necessary,  for  a  conqueror  desirous 
of  retaining  conquered  territory  to  secure  its  cession 
in  the  treaty  of  peace. ^ 
Amnesty.  §  274.  Siucc  a  treaty  of  peace  is  considered  a  final 
settlement  of  the  war,  one  of  the  effects  of  every  peace 
treaty  is  the  so-called  amnesty — that  is,  an  immunity 
for  all  wrongful  acts  done  by  the  beUigerents  them- 
selves, the  members  of  their  forces,  and  their  subjects 
during  the  war,  and  due  to  pohtical  motives.^  It  is 
usual,  but  not  at  all  necessary,  to  insert  an  amnesty 

^  A    case    of     concealed     cession  tion  to  the  Powers.     See  Diena  in 

occurred  with  regard  to  Tripoli  and  Z.I.,    xxiii.   (1913),    who,    however, 

Cyrenaica  at  the  end  of  the  Turoo-  does  not  consider  this  to  be  a  case 

Italian  War  in  1912.     Inasmuch  as  of  concealed  cession,  but  of  derelic- 

Turkey  did  not  want  to  cede  these  tion   by  Turkey  and  occupation   of 

territories  expressit  verbis,  and  Italy  no  man's  land  by  Italy, 

insisted    on     acquiring     them,    the  *  This  immunity  is  only  effective 

parties    agreed     in    a    protocol    of  in  regard  to  the  other  party  to  the 

October    15,    1912,    that   before  the  war.     For  instance,  while  it  prevents 

conclusion  of  peace  which  took  place  an  occupant  of  enemy  territory  from 

at  Lausanne  on  October  18,  1912 —  punishing   war   criminals   after   the 

see  Martens,  N.R.G.,  3rd  Ser.  vii.  conclusion    of    peace,     it    does    not 

p.    7 — Turkey   should   within   three  prevent  a  belligerent  from  punishing 

days   grant   complete   autonomy  to  members  of  his  own  forces,  or  any 

these   territories,    and    thereby    re-  of  his  own  subjects,  who  during  war 

nounce  sovereignty  over  them.     This  committed  violations  of  the  laws  of 

having   been   done,  and  peace  con-  war,    e.g.    killed    wounded    enemy 

eluded,  Italy  notified  their  annexa-  soldiers  and  the  like. 


EFFECTS  OF  TREATY  OF  PEACE        369 

clause  in  a  treaty  of  peace.  Therefore,  unless  the 
contrary  is  expressly  stipulated  in  the  treaty,^  so-called 
war  crimes  ^  which  were  not  punished  before  the  con- 
clusion of  peace  may  no  longer  be  punished  after  its 
conclusion.  Individuals  who  have  committed  such 
war  crimes,  and  have  been  arrested  for  them,  must  be 
hberated.^  International  dehnquencies  committed  in- 
tentionally by  belhgerents  through  violation  of  the  rules 
of  legitimate  warfare  are  considered  to  have  been 
condoned.  Formerly,  even  claims  for  reparation  for 
damages  caused  by  such  acts  could  not  be  set  up  after 
the  conclusion  of  peace,  unless  the  contrary  was  ex- 
pressly stipulated  ;  but  Article  3  of  Hague  Conven- 
tion IV.  has  changed  this.^  On  the  other  hand,  the 
amnesty  has  nothing  to  do  with  ordinary  crimes,  or 
with  debts  incurred  during  war.  A  prisoner  of  war 
who  commits  murder  during  captivity  may  be  tried  and 
punished  after  the  conclusion  of  peace,  just  as  a  prisoner 
who  runs  into  debt  during  captivity  may  be  sued  after 
the  conclusion  of  peace,  or  an  action  be  brought  on  a 
ransom  bill. 

But  here  again  the  amnesty  grants  immunity  only 
for  wrongful  acts  done  by  the  subjects  of  one  beUigerent 
against  the  other.  Wrongful  acts  committed  by  the 
subjects  of  a  belUgerent  against  their  own  Government 
are  not  covered  by  it.  Therefore  a  belligerent  may 
after  the  conclusion  of  peace  punish  treason,  desertion, 

^  The  contrary  was  expressly  stipu-  mediately  after  the  close  of  hostili- 

lated  in  the  Treaties  of  Peace  after  ties.'     But — see  above,  §  265,  p.  360, 

the  World  War.     See  above,  §  253.  n.  1— the  agreement  embodj-ing  these 

-  See  above,  §§  251-257.     Clause  4  terms  of  surrender  was  not  a  treaty 

of  the    '  Terms  of  Surrender  of  the  of  peace,  the  Boer  War  having  been 

Boer  Forces  in  the  Field'— see  Pari.  terminated  through  subjugation. 
PapevB,    South    Africa    (1902),   Cd.  3  This  applies  only  to  those  who 

10%-expressly  excluded   from  the  h^.^e  not  yet  been  convicted.     Those 

amnesty     certain  acts    contrary    to  ^^^^       j^^    ^  term  of  imprisonment 

""^^r^^K    )^*^.    ^l"°b  ,^^^«   been  ^^^^  \^^\^  liberated   at  the  con- 
notifaed  by  the  Commander-in-Chief  ^^  ^^^  ^^       g  257. 

to   the   Boer   Generals,    and    which  *^ 

shall   be  tried  by  court-martial  im-  *  See  above,  §  259a. 

VOL.   II.  2  A 


370  END  OF  WAR,    AND  POSTLIMINIUM 

and  the  like  committed  during  the  war  by  his  own 
subjects,  unless  the  contrary  has  been  expressly  stipu- 
lated in  the  treaty  of  peace.^ 
Release  of     §  275.  A  Very  important  efiect  of  a  treaty  of  peace 
ofWarr  ^s  to  end  the  captivity  of  prisoners  of  war.^    This, 
however,  does  not  mean  that  with  the  conclusion  of 
peace  all  prisoners  of  war  must  at  once  be  released. 
It  only  means — to  use  the  words  of  Article  20  of  the 
Hague    Regulations — that    '  after    the    conclusion    of 
peace,  the  repatriation  of  prisoners  of  war  shall  take 
place  as  speedily  as  possible,'  or  to  employ  the  phrase- 
ology of  the  Treaty  of  Peace  with  Germany,  that  their 
repatriation  '  shall  take  place  as  soon  as  possible  after 
the  coming  into  force  of  the  .  .  .  treaty,  and  shall  be 
carried  out  with  the  greatest  rapidity." '    The  instant 
release  of  prisoners  at  the  very  place  where  they  were 
detained,  would  be  inconvenient,  not  only  for  the  State 
which  kept  them  in  captivity,  but  also  for  themselves, 
as  in  most  cases  they  would  not  possess  means  to  pay 
for  their  journey  home.     Therefore,  although  with  the 
conclusion  of  peace  they  cease  to  be  captives  in  the 
technical  sense  of  the  term,  prisoners  of  war  remain, 
as   a   body,   under  mihtary  disciphne  until   they   are 
brought  to  the  frontier,  and  handed  over  to  their  Govern- 
ment.    That  prisoners  of  war  may  be  detained  after 
the  conclusion  of  peace  until  they  have  paid  debts  in- 
curred during  captivity  seems  to  be  an  almost  generally  * 
recognised  rule,  and  the  Treaties  of  Peace  after  the 
World  War  provided  that  prisoners  '  awaiting  disposal 
or  undergoing  sentence  for  offences  other  than  those 
against  disciphne '  might  be  detained.^    But  it  is  con- 

^  Thus  Russia  slipulatt'd  by  Article  war. 

17     of    the     Preliminaries    of    San  ^  See  above,  §  132. 

Stefano,     in     1878  —  see     Martens,  ^  Article  214. 

N.R.G.,    2nd  Ser.  iii.  p.  252 — that  ^  See,    however,    Pradier-Fod^r^, 

Turkey  must  accord  an  amnesty  to  vii.  No.  2839,  who  objects  to  it. 

such   of   her   own    subjects   as   had  '  See,     for    example.    Treaty    of 

compromised  themselves  during  the  Peace  with  Germany,  Article  219. 


PERFORMANCE  OF  TREATY  OF  PEACE      371 

troversial  whether  prisoners  of  war  may  be  detained 
who  are  undergoing  a  term  of  imprisonment  for  offences 
against  discipline.  After  the  Franco-German  War  in 
1871  Germany  detained  such  prisoners/  whereas  Japan 
after  the  Russo-Japanese  War  in  1905  released  them. 
After  the  World  War  the  Alhed  and  Associated  Powers 
released  such  German  prisoners  unless  the  offence  had 
been  committed  after  a  certain  date.^ 

§  276.  The  question  how  far  a  peace  treaty  revives  Revival  of 
treaties  concluded  between  the  parties  before  the  out-  '^''^^'^'^s- 
break  of  war  is  much  controverted.  The  answer 
depends  upon  the  other  question,  how  far  the  outbreak 
of  war  cancels  existing  treaties  between  belhgerents.^ 
There  can  be  no  doubt  that  treaties  which  have  been 
cancelled  by  the  outbreak  of  war  do  not  revive.  On 
the  other  hand,  there  can  hkewise  be  no  doubt  that 
treaties  which  have  only  been  suspended  by  the  out- 
break of  war  do  revive.  But  no  certainty  or  unanimity 
exists  regarding  treaties  which  do  not  belong  to  the 
above  two  classes,  and  no  rule  of  International  Law 
exists  concerning  them.  It  is  for  the  parties  to  make 
special  stipulations  in  the  peace  treaty. 

VI 

PERFORMANCE  OF  TREATY  OF  PEACE 

Grotius,  iii.  c.  20— Vattel,  iv.  §§  24-34— Philliraore,  iii.  §  597— Halleck,  i. 
pp.  339-342— Taylor,  §§  593-594— Wheaton,  §§  548-550— Bluntschli,  §§ 
724-726— Hefifter,  §  184— Kirchenheim  in  Holtzendorff,  iv.  pp.  817-822 
— UUmann,  §  199— Bonfils,  Nos.  1706-1709— Despagnet,  Nos.  612  and 
613— Rivier,  ii.  pp.  459-461— Nys,  iii.  p.  753— Calvo,  v.  §§  3164-3168— 
Fiore,  iii.  Nos.  1704-1705— Martens,  ii.  §  128— Longiiet,  §§  156-164 — 
M^rignhac,  iii".  pp.  132-133 — Phillipson,  Termination  of  War  (1916), 
pp.  205-213. 

*  See    Pradier  -  Fod^r^,    vii.    No.  *  See,  for  example,  Treaty  of  Peace 

2840  ;  Bienhauer,    Die    Kriegsgefan-  with  Germany,  Article  218. 

gtnschaft  (1908),  p.  79  ;  Payrat,  Le  '  See   above,    §  99,  and  the  very 

Prisonnier  de  Guerre  (1910),  pp.  364-  detailed  discussion  of  the  question  in 

370.  Phillimore,  iii.  §§  529-538. 


372  END  OF  WAR,   AND  POSTLIMINTOM 

Treaty  of  §  277.  The  general  rule  that  treaties  must  be  per- 
how  to  be  formed  in  good  faith  appHes  to  peace  treaties  as  well  as 
out"^'^  to  others.  The  great  importance,  however,  of  a  treaty 
of  peace,  and  its  special  circumstances  and  conditions, 
make  it  necessary  to  draw  attention  to  some  points 
connected  with  its  performance.  Occupied  territory 
may  have  to  be  evacuated,  a  war  indemnity  may 
have  to  be  paid  in  cash,  boundary  hnes  of  ceded  terri- 
tory may  have  to  be  drawn,  and  many  other  tasks 
performed.  These  tasks  often  necessitate  the  con- 
clusion of  numerous  treaties  for  the  execution  of  the 
peace  treaty  in  detail,  and  the  appointment  of  com- 
missioners. Difi&culties  may  arise  in  regard  to  the 
interpretation  ^  of  certain  stipulations,  which  will  be ' 
settled  by  arbitration  or  otherwise  if  the  parties  cannot 
agree.  Arrangements  may  have  to  be  made  for  the 
case  in  which  a  part,  or  the  whole,  of  the  territory 
occupied  during  the  war  is  to  remain  for  some  period 
under  mihtary  occupation  as  a  means  of  securing  the 
performance  of  the  peace  treaty.^  One  can  form  an 
idea  of  the  numerous  points  of  importance  to  be  dealt 
with  during  the  performance  of  a  treaty  of  peace  if 
one  takes  into  consideration  that,  after  the  Franco- 
German  War  was  terminated  in  1871  by  the  Peace  of 
Frankfort,  more  than  a  hundred  conventions  were 
successively  concluded  for  the  purpose  of  carrying  out 
this  treaty  of  peace,  or  if  one  studies  the  texts  of  the 
treaties  of  the  peace  after  the  World  War,  and  con- 
siders the  questions  arising  under  them  from  day  to 
day.^ 
Breach  of  §  278.  Just  as  is  the  performance,  so  is  the  breach 
fITcI  °^  o^  peace  treaties  of  great  importance.  A  peace  treaty 
can  be  violated  in  its  entirety,  or  in  one  of  its  stipula- 
tions only.    Violation  by  one  of  the  parties  does  not 

^  See  above,  vol.  i.  §§  553-554.  ^  See  above,  vol.  i.  §§  5G8rf-o68p. 

*  See  above,  vol.  i.  §  527. 


I 


PERFORMANCE  OF  TREATY  OF  PEACE      373 

ifso  facto  cancel  the  treaty  ;  but  the  other  party  may 
cancel  it  on  this  ground.  Just  as  with  violation  of 
treaties  in  general,  so  with  violations  of  treaties  of  peace, 
some  publicists  maintain  that  a  distinction  must  be 
drawn  between  essential  and  non-essential  stipulations, 
and  that  only  violation  of  essential  stipulations  creates 
a  right  for  the  other  party  to  cancel  the  treaty  of  peace. 
It  has  been  shown  above,^  that  the  majority  of  publicists 
rightly  oppose  the  distinction. 

But  a  distinction  must  be  made  between  a  violation 
during  the  period  in  which  the  conditions  of  the  peace 
treaty  have  to  be  fulfilled,  and  a  violation  afterwards. 
In  the  first  case,  the  other  party  may  at  once  recom- 
mence hostihties,  the  war  being  considered  not  to  have 
terminated  through  the  violated  peace  treaty.  The 
second  case,  which  might  happen  soon  or  not  until 
several  years  after  the  period  for  the  fulfilment  of  the 
peace  conditions,  is  in  no  way  difierent  from  violation 
of  any  treaty  in  general.  If  a  party  cancels  a  peace 
treaty,  and  wages  war  against  the  State  which  violated 
it,  this  war  is  a  new  war,  and  in  no  way  a  continuation 
of  the  previous  war,  which  was  terminated  by  the 
violated  treaty  of  peace.  Just  as  in  case  of  violation 
of  a  treaty  in  general,  so  in  case  of  violation  of  a  peace 
treaty,  the  injured  party  who  wants  to  cancel  it  on 
that  ground  must  do  this  within  reasonable  time  after 
the  violation  has  taken  place  ;  otherwise  the  treaty, 
or  at  least  the  non-violated  parts  of  it,  remain  vahd. 
A  mere  protest  neither  constitutes  a  cancellation  nor 
reserves  the  right  of  cancellation.^ 

*  See  above,  vol.  i.  §  547. 


374  END    OF   WAE,    AND    POSTLIMINIUM 

VII 

POSTLIMINIUM 

Grotius,  iii.  c.  9 — Bynkershoek,  Quaestiones  Juris  publici,  i.  c.  15  and  16 — 
Vattel,  iii.  §§  204-222— Hall,  §  162-166— Manning,  pp.  190-195— Philli 
more,  iii.  §§  539-590— Halleck,  ii.  pp.  535-564— Taylor,  §  595— Wheaton 
§  398— Bluntsehli,  §§  727-741— Heffter,  §§  188-192— Kirchenheim  in  Holt 
zendorff,  iv.  pp.  822-836— Bonfils,  No.  1710— Despagnet,  No.  614— Nya 
iii.  pp.  757-758— Rivier,  ii.  pp.  314-316— Calvo,  v.  §§  3169-3226— Fiore 
iii.  Nos.  1706-1712— Martens,  ii.  §  128— Pillet,  p.  377. 

Concep-  §  279.  The  term  '  postliminium  '  is  originally  one 
Po"t-"  of  Roman  Law  derived  from  post  and  limen  {i.e.  bound- 
liminium.  aiy).  According  to  Roman  Law,  the  relations  of 
Rome  with  a  foreign  State  depended  upon  whether  or 
not  a  treaty  of  friendship  ^  existed.  If  such  a  treaty 
was  not  in  existence,  Romans  entering  the  foreign 
State  concerned  could  be  enslaved,  and  Roman  goods 
taken  there  could  be  appropriated.  Now,  jus  fost- 
liminii  denoted  the  rule  (1)  that  a  Roman  so  enslaved, 
should  he  ever  return  into  the  territory  of  the  Roman 
Empire,  became  ipso  facto  a  Roman  citizen  again,  with 
all  the  rights  he  possessed  previous  to  his  capture, 
(2)  that  Roman  property,  appropriated  after  entry  into 
the  territory  of  a  foreign  State,  at  once  upon  being 
taken  back  into  the  territory  of  the  Roman  Empire 
if  so  facto  reverted  to  its  former  Roman  owner.  Modern 
International  and  Municipal  Law  have  adopted  the 
term  to  indicate  the  fact  that  territory,  individuals, 
and  property,  after  having  come  in  time  of  war  under 
the  authority  of  the  enemy,  return,  either  during  the 
war  or  at  its  end,  under  the  sway  of  their  original 
sovereign.  This  can  occur  in  different  ways.  Occupied 
territory  can  voluntarily  be  evacuated  by  the  enemy, 
and  then  at  once  be  reoccupied  by  the  owner ;  or  it 
can  be  reconquered  by  the  legitimate  sovereign ;    or 

*  See  above,  vol.  i.  §  40. 


POSTLIMINIUM  375 

it  can  be  reconquered  by  a  third  party,  and  restored  to 
its  legitimate  owner.  Conquered  territory  can  also  be 
freed  through  a  successful  levy  en  masse.  Property 
seized  by  the  enemy  can  be  retaken,  but  it  can  also  be 
abandoned  by  the  enemy,  and  subsequently  revert  to 
the  belligerent  from  whom  it  was  taken.  Further, 
conquered  territory  can,  in  consequence  of  a  treaty  of 
peace,  be  restored  to  its  legitimate  sovereign.  In  all 
such  cases,  the  question  has  to  be  answered  what  legal 
effects  the  posthminium  has  in  regard  to  the  territory, 
the  individuals  thereon,  or  the  property  concerned. 

§  280.  Most   writers   confound   the   effects   of   post-  Post- 
Hminiimi    according    to    Municipal    Law    with    those  according 
according  to  International  Law.    For  instance  :  whether  naUonai 
a  private  sliip  which  is  recaptured  reverts  ipso  facto  Law,  in 
to  its  former  owner ;  ^    whether  the  former  laws  of  a  distinc- 
reconquered  State  revive  ipso  facto  by  the  reconquest ;  p°"t.*° 
whether  sentences  passed  on  criminals  during  occupa-  Hminium 
tion  by  the  enemy  should  be  armulled ;  these,  and  many  to  Muni- 
similar   questions   treated   in   books   on   International  ^^^°'^  ^'^' 
Law,  have  nothing  at  all  to  do  with  International  Law, 
but  have  to  be  determined  exclusively  by  the  Municipal 
Law  of  the  respective  States.     International  Law  can 
deal   only   with   such   effects   of   postliminium  as   are 
international.     These  may  be  grouped  under  the  fol- 
lowing  heads :     revival    of    the    former    condition   of 
things,  vahdity  of  legitimate  acts,  invahdity  of  ille- 
gitimate acts. 

§  281.  Although    a    territory,    and    the    individuals  Revival 
thereon,    come    through    military    occupation   in  '  war  former 
under  the  actual  authority  of  the  enemy,  neither  it  ^f°J^fjj°° 
nor  they,  according  to  the  rules  of  International  Law 
of  our  times,  fall  under  the  sovereignty  of  the  invader. 
They  remain,  if  not  acquired  by  the  conqueror  through 
subjugation,  imder  the  sovereignty  of  the  other  belh- 

^  See  above,  §  196. 


376  END   OF  WAR,   AND  POSTLIMINIUM 

gerent,  although  the  latter  is  in  fact  prevented  from 
exercising  his  supremacy  over  them.  Now,  the  moment 
the  invader  voluntarily  evacuates  such  territory,  or 
is  driven  away  by  a  levy  en  masse,  or  by  troops  of  the 
other  belHgerent,  or  of  his  ally,  the  former  condition 
of  things  if  so  facto  revives.  The  territory  and  individ- 
uals concerned  are  at  once,  so  far  as  International  Law 
is  concerned,  considered  to  be  again  under  the  sway  of 
their  legitimate  sovereign.  For  all  events  of  inter- 
national importance  taking  place  on  such  territory 
the  legitimate  sovereign  is  again  responsible  towards 
third  States,  whereas  during  the  time  of  occupation 
the  occupant  was  responsible. 

However,  a  case  in  which  an  occupant  of  territory  is 
driven  out  of  it  by  the  forces  of  a  third  State  not  alhed 
with  the  legitimate  sovereign  of  such  territory  is  not 
one  of  posthminium,  and,  consequently,  the  former 
state  of  things  does  not  revive,  unless  the  new  occupant 
hands  the  territory  over  to  the  legitimate  sovereign. 
1i  this  is  not  done,  the  mihtary  occupation  of  the 
new  occupant  takes  the  place  of  that  of  the  previous 
occupant. 
Validity  §  2^2-  Posthminium  has  no  effect  upon  such  acts 
ofLegiti-  of  a  formcr  mihtary  occupant  connected  with  the 
Acts.  occupied  territory,  and  the  individuals  and  property 
thereon,  as  he  was,  according  to  International  Law, 
competent  to  perform ;  these  acts  are  legitimate  acts. 
Indeed,  the  State  into  whose  possession  such  territory 
has  reverted  must  recognise  these  legitimate  acts,  and 
the  former  occupant  has  by  International  Law  a  right 
to  demand  this.  Therefore,  if  the  occupant  has  collected 
the  ordinary  taxes,  has  sold  the  ordinary  fruits  of  im- 
moveable property,  has  disposed  of  such  moveable 
state  property  as  he  was  competent  to  appropriate,  or 
has  performed  other  acts  in  conformity  with  the  laws 
of  war,  this  may  not  be  ignored  by  the  legitimate 


POSTLIMINIUM  377 

sovereign  after  he  has  again  taken  possession  of  the 
territory. 

However,  this  only  extends  to  acts  which  have 
occurred  during  the  occupation.  A  case  which  ilhis- 
trates  this  happened  after  the  Franco-German  War. 
In  October  1870,  during  occupation  by  German  troops 
of  the  Departements  de  la  Meuse  and  de  la  Meurthe,  a 
Berhn  firm  entered  into  a  contract  with  the  German 
Govermnent  to  fell  15,000  oak  trees  in  the  State  forests 
of  these  dSpartements,  paying  in  advance  £2250.  The 
Berlin  firm  sold  its  contractual  rights  to  others,  who 
after  having  felled  9000  trees  sold,  in  March  1871, 
their  right  to  fell  the  remaining  6000  trees  to  yet  another 
party.  The  last-named  party  felled  some  of  them 
during  the  German  occupation  ;  but  when  the  French 
Government  again  took  possession  of  the  territory, 
the  contractors  were  without  compensation  prevented 
from  further  felhng  trees. ^  The  question  whether  the 
Germans  had  a  right  to  enter  into  the  contract  at  all 
is  doubtful.  But  even  if  they  had,  it  covered  the  felhng 
of  trees  during  their  occupation  only,  and  not  afterwards. 

§  283.  If  the  occupant  has  performed  acts  which,  invalidity 
according  to  International  Law,  he  was  not  competent  JjJJte^^*^' 
to  perform,  posthminium  makes  the  invahdity  of  these  Acta. 
illegitimate  acts  apparent.     Therefore,  if  the  occupant 
has   sold  immoveable   State   property,   such  property 
may  afterwards  be  claimed  from  the  purchaser,  whoever 
he  is,  without  compensation.     If  he  has  given  office  to 
individuals,    they    may    afterwards    be    dismissed.     If 
he  has  appropriated  and  sold  such  private  or  pubhc 
property  as  may  not  legitimately  be  appropriated  by  a 
mihtary  occupant,  it  may  afterwards  be  claimed  from 
the  purchaser  without  payment  of  compensation. 

^  The  protocol  of  signature  added  X.R.G.,    xx.    p.    868 — comprised    a 

to  the  Additional  Convention  to  the  declaration  that  the  French  Govern - 

Peace  Treaty  of  Frankfort,  signed  on  ment  did  not  recognise  any  liability 

December   11,   1871 — see   Martens,  to  pay  compensation. 


378  END   OF  WAR,    AND  POSTLIMINIUM 

No  Post-  §  284.  Cases  of  postliminium  occur  only  when  a  con- 
after  quered  territory  reverts,  either  during  or  at  the  end  of 
regnum  ^^^  ^^^'  ^^^^  ^^^  possession  of  the  legitimate  sovereign. 
No  case  of  posthminium  arises  when  a  territory,  ceded 
to  the  enemy  by  the  treaty  of  peace,  or  conquered  and 
annexed  without  cession  at  the  end  of  a  war  termin- 
ated through  simple  cessation  of  hostihties,^  later  on 
reverts  to  its  former  owner  State  ;  or  when  the  whole 
of  the  territory  of  a  State  which  was  conquered  and 
subjugated  regains  its  hberty,  and  becomes  again  the 
territory  of  an  independent  State.  In  these  cases  the 
territory  has  actually  been  under  the  sovereignty  of 
the  conqueror ;  the  period  between  the  conquest  and 
the  revival  of  the  previous  condition  of  things  was  not 
one  of  mere  mihtary  occupation  during  war,  but  one 
of  an  interregnum  during  time  of  peace,  and  therefore 
the  revival  of  the  former  condition  of  things  is  not  a 
case  of  posthminium.  An  illustration  of  this  is  furnished 
by  the  case  of  the  domains  of  the  Electorate  of  Hesse- 
Cassel.^  This  hitherto  independent  State  was  subju- 
gated in  1806  by  Napoleon,  and  became  in  1807  part 
of  the  Kingdom  of  Westphaha  constituted  by  Napoleon 
for  his  brother  Jerome.  Jerome  governed  it  up  to  the 
end  of  1813,  when,  with  the  downfall  of  Napoleon,  the 
Kingdom  of  Westphaha  fell  to  pieces,  and  the  former 
Elector  of  Hesse-Cassel  was  reinstated.  During  his 
reign  Jerome  had  sold  many  of  the  domains  of  Hesse- 
Cassel.  The  Elector,  on  his  return,  did  not  recognise 
these  contracts,  but  deprived  the  owners  of  their 
property  without  compensation,  maintaining  that  a 
case  of  posthminium  had  arisen,  and  that  Jerome  had 
no  right  to  sell  the  domains.  The  courts  of  the  elector- 
ate pronounced  against  the  Elector,  denying  that  a 
case  of  posthminiimi  had  arisen,  since  Jerome,  although 

1  See  above,  §  263. 

^  See  Phillimore,  iii.  §§  568-574,  and  the  literature  there  quoted. 


POSTLIMINIUM  379 

a  usurper,  had  been  King  of  Westphalia  during  an 
interregnum,  and  the  sale  of  the  domains  was  therefore 
no  wrongful  act.  But  the  Elector,  who  was  absolute 
in  the  electorate,  did  not  comply  with  the  verdict  of 
his  own  courts,  and  the  Vienna  Congress,  which  was 
approached  by  the  unfortunate  proprietors  of  the 
domains,  refused  to  intervene,  although  Prussia 
strongly  took  their  part.  It  is  generally  recognised 
by  all  writers  on  International  Law  that  this  case  was 
not  one  of  posthminium,  and  the  attitude  of  the  Elector 
camiot  therefore  be  defended  by  appeal  to  International 
Law. 


PART  III 

NEUTRALITY 


CHAPTER  I 

ON   NEUTRALITY   IN  GENERAL 

I 

DEVELOPMENT  OF   THE   INSTITUTION   OF  NEUTRALITY 

Hall,  §§  208-214— Lawrence,  §  223— Westlake,  ii.  pp.  198-206— Philliraore,  iii. 
§?  161-226— Twiss,  ii.  §§  208-212- Hershey,  No.  446— Taylor,  §§  596- 
613— Walker,  History,  pp.  195-202,  and  Science,  pp.  374-387— GefiFcken 
in  Holtzendorff,  iv.  pp.  614-634— Ullmann,  §  190— Bonfils,  Nos.  1494- 
1521— Despagnet,  No.  687— Rivier,  ii.  pp.  370-375— Nys,  iii.  pp.  535- 
546— Calvo,  iv.  §§  2494-2591— Fiore,  iii.  Nos.  1503-1535— Martens,  ii. 
§  130— Dupuis,  Nos.  302-307— M^rignhac,  iii\  p.  495— Boeck,  Nos. 
8-153 — Kleen,  i.  pp.  1-70 — Cauchy,  Le  Droit  maritime  international 
(1862),  ii.  pp.  232-439— Gessner,  pp.  1-69— Bergbohra,  Die  bewaffnete 
Neutralitdt  17S0-17SS  (1884)— Fauchille,  La  Diplomatie  fran^aite  et  la 
Ligue  des  Neutres  1780  (1893) — Schweizer,  Geachichte  der  schweizeriichen 
Neutralitdt  (1895),  i.  pp.  10-72 — Boye,  Dc  Vaebnede  Neutralitetsforhund 
(1912)— Wehberg,  §  2— Pyke,  The  Lata  of  Contraband  (1915),  pp.  20-88 
— Piggott  and  Ormond,  Documentary  History  of  the  Armed  Neutralities 
(1919) — Roxburgh  in  the  Journal  of  Comparative  Legislation,  3rd  Ser. 
i.  p.  17. 

§  285.  Since  in  antiquity  there  was  no  notion  of  an  Neutral- 
International  Law/ it  is  not  to  be  expected  that  neutrahty  p^^^t^ised 
as  a  legal  institution  should  have  existed  among  the  in  Ancient 

.  Times. 

nations  of  old.  Neutrahty  did  not  exist  even  in  prac- 
tice, for  belhgerents  never  recognised  an  attitude  of 
impartiahty  on  the  part  of  other  States.  If  war  broke 
out  between  two  nations,  third  parties  had  to  choose 
between  the  belhgerents,  and  become  alhes  or  enemies 
of  one  or  other.  This  does  not  mean  that  third  parties 
had  actually  to  take  part  in  the  fighting.  Nothing 
of  the  kind  was  the  case.     But  they  had,  if  necessary, 

^  See  above,  vol.  i.  §  37. 


384         ON  NEUTRALITY  IN  GENERAL 

to  render  assistance  ;  for  example,  to  allow  the  passage 
of  belligerent  forces  through  their  country,  to  supply 
provisions  and  the  hke  to  the  party  they  favoured, 
and  to  deny  all  such  assistance  to  the  enemy.  Several 
instances  are  known  of  efiorts  ^  on  the  part  of  third 
parties  to  take  up  an  attitude  of  impartiahty ;  but 
belligerents  never  recognised  such  impartiahty. 
Neutral-  §  286.  During  the  Middle  Ages  matters  only  changed 
ity  uring  ^^  ^-^^  extcut  that,  iu  the  latter  part  of  this  period,  beUi- 
Middie  gereuts  did  not  exactly  force  third  parties  to  a  choice  ; 
legal  duties  and  rights  connected  with  neutrahty  did 
not  exist.  A  State  could  maintain  that  it  was  no 
party  to  a  war,  although  it  furnished  one  of  the  belli- 
gerents with  money,  troops,  and  other  kinds  of  assist- 
ance. To  prevent  such  assistance,  which  was  in  no 
way  considered  illegal,  treaties  were  frequently  con- 
cluded, during  the  latter  part  of  the  Middle  Ages,  speci- 
ally stipulating  that  neither  party  was  to  assist  the 
enemies  of  the  other  in  any  way  during  time  of  war, 
or  allow  his  subjects  to  do  so.^  Through  the  influence 
of  such  treaties,  the  difierence  between  real  and  feigned 
impartiahty  of  third  States  during  war  became  recog- 
nised ;  and  neutrahty,  as  an  institution  of  Inter- 
national Law,  gradually  developed  during  the  six- 
teenth century.^ 

It  was  of   great  importance  that  the  Swiss  Con- 
federation from  the  end  of  the  sixteenth  century  adopted 

^  See  Geffcken  in  Holtzendorff,  iv.  the  beginning  of  the  eighteenth  cen- 

pp.  614-615.  tury    until    the    outbreak     of    the 

*  The  collection  of  rules  and  cus-  Crimean  War  in  1854.     See  above, 

toms  of   maritime   law  which   goes  §  176. 
under  the  name  of  the  Consolato  del 

Mare  made  its  appearance  about  the  *  See  '  Neutrality  and  Neutralisa- 

middle  of  the   fourteenth    century.  tion    in    the    Sixteenth    Centurj' — 

One  of  its  rules,  i.e.  that  in  time  of  Li6ge,'  by  W.  S.  M.  Knight  (Journ. 

war  enemy  goods  on  neutral  vessels  Comp.  Leg.,  3rd  Ser.  ii.  p.  98),  and 

might  be  confiscated,   but  that,  on  '  Neutrality  of  the  Channel  Islands 

the    other   hand,    neutral   goods  on  during  the  Fifteenth,  Sixteenth,  and 

enemy    vessels    must    be    restored,  Seventeenth   Centuries,'    by   E.    T. 

became  of   great  importance,  since  NicoUe  (/owm.  Comp.  Leg.,  Zv6.^ev. 

Great  Britain  acted  accordingly  from  ii.  p.  238). 


DEVELOPMENT  OF  NEUTRALITY  385 

the  new  and  changed  poHcy  of  always  remaining  neutral 
diu'ing  wars  between  other  States.  Although  this 
former  neutrahty  of  the  Swiss  can  in  no  way  be  com- 
pared with  modern  neutrality,  since  Swiss  mercenaries 
for  centuries  afterwards  fought  in  all  European  wars, 
the  Swiss  Government  itself  succeeded  in  each  instance 
in  taking  up,  and  preserving,  an  attitude  of  impar- 
tiahty,  which  comphed  with  the  rules  of  neutrahty 
then  current. 

§  287.  At  the  time  of  Grotius,  neutrahty  was  recog-  Neutrai- 
nised  as  an  institution  of  International  Law,  although  th^seven^ 
it  was  only  in  its  infancy  and  needed  a  long  time  to  q  ^"^^. 
reach  its  present  range.  Grotius  did  not  know,  or  at 
any  rate  did  not  use,  the  term  neutrahty.^  He  treats 
neutrahty  in  the  very  short  seventeenth  chapter  of 
the  Third  Book  on  the  Law  of  War  and  Peace,  mider 
the  title  De  his,  qui  in  Bello  medii  sunt,  and  only  estab- 
Hshes  two  doubtful  rules.^  The  first  is  that  neutrals 
shall  do  nothing  which  may  strengthen  a  belhgerent 
whose  cause  is  unjust,  or  hinder  the  movements  of  a 
belhgerent  whose  cause  is  just.  The  second  rule  is  that 
in  a  war  in  which  it  is  doubtful  whose  cause  is  just, 
neutrals  shall  treat  both  belhgerents  ahke,  in  permitting 
the  passage  of  troops,  in  supplying  provisions  for  the 
troops,  and  in  not  rendering  assistance  to  persons  besieged. 

The  treatment  of  neutrahty  by  Grotius  shows,  on 
the  one  hand,  that,  apart  from  the  recognition  of  the 
fact  that  third  parties  could  remain  neutral,  not  many 
rules  regarding  the  duties  of  neutrals  existed,  and,  on 
the  other  hand,  that  the  granting  of  passage  to  troops 
of  belhgerents,  and  the  supply  of  provisions  to  them, 
were  not  considered  illegal.  Indeed,  the  practice  of 
the  seventeenth  century  shows  in  numerous  instances 

^  That  the  term  was  known  at  the  Neviralitdt  und  Aasittenz  in  Kriegt- 

time  of  Grotius  maj' be  inferred  from  zeiten;  see  Nys  in  iJ./. ,  xvii.  (1885), 

the  fact  that  Neumayr  de  Ramsla  in  p.  78. 

1620   published   his   work    Von  der  »  §  3. 

VOL.  n.  2  B 


386  ON  NEUTRALITY  IN  GENERAL 

that  neutrality  was  not  really  an  attitude  of  impar- 
tiality, and  that  belhgerents  did  not  respect  the  terri- 
tories of  neutral  States.  Thus,  although  Charles  i. 
remained  neutral,  the  Marquis  of  Hamilton  and  six 
thousand  British  soldiers  were  fighting  in  1631  under 
Gustavus  Adolphus.  '  In  1627  the  Enghsh  captured 
a  French  ship  in  Dutch  waters  ;  in  1631  the  Spaniards 
attacked  the  Dutch  in  a  Danish  port ;  in  1639  the 
Dutch  were  in  turn  the  aggressors,  and  attacked  the 
Spanish  Fleet  in  Enghsh  waters  ;  again,  in  1666,  they 
captured  Enghsh  vessels  in  the  Elbe  .  .  .  ;  in  1665  an 
Enghsh  fleet  endeavoured  to  seize  the  Dutch  East 
India  Squadron  in  the  harbour  of  Bergen,  but  were 
beaten  off  with  the  help  of  the  forts ;  finally,  in  1693, 
the  French  attempted  to  cut  some  Dutch  ships  out 
of  Lisbon,  and  on  being  prevented  by  the  guns  of  the 
place  from  carrying  them  off,  burnt  them  in  the 
river/  ^ 
Progress  §  288.  It  was  uot  uutil  the  eighteenth  century 
traiity  ^^^^  theory  and  practice  agreed  that  it  was  the  duty 
diiring  q|  neutrals  to  remain  impartial,  and  of  belhgerents  to 
teenth  rcspcct  thc  territories  of  neutrals.  Bynkershoek  and 
entury.  y^^^^j  formulated  adequate  conceptions  of  neutrahty. 
Bynkershoek  ^  does  not  use  the  term  '  neutrahty,'  but 
caUs  neutrals  non  Jiostes,  and  he  describes  them  as 
those  who  are  of  neither  party — qui  neutrarum  partium 
sunt — in  a  war,  and  who  do  not,  in  accordance  with  a 
treaty,  give  assistance  to  either  party.  Vattel,^  on 
the  other  hand,  uses  the  term  '  neutrahty,'  and  gives 
the  foUomng  definition :  '  Neutral  nations,  during  a 
war,  are  those  who  take  no  one's  part,  remaim'ng 
friends  common  to  both  parties,  and  not  favouring  the 
armies  of  one  of  them  to  the  prejudice  of  the  other.' 
But  although  Vattel's  book  appeared  in  1758,  twenty- 

»  See  Hall,  §  209.  '  iii.  §  103. 

*  Quaealionet  Jwru  publici,  i.  c.  9. 


DEVELOPMENT  OF  NEUTRALITY  387 

one  years  after  that  of  Bynkershoek,  his  doctrines  are 
in  some  ways  less  advanced  than  those  of  Bynkershoek. 
Bynkershoek,  in  contradistinction  to  Grotius,  main- 
tained that  neutrals  had  nothing  to  do  with  the  ques- 
tion as  to  which  party  to  a  war  had  a  just  cause  ;  that 
neutrals,  being  friends  to  both  parties,  have  not  to  sit 
as  judges  between  them,  and,  consequently,  must  not 
give  or  deny  to  one  party  or  the  other  more  or  less  in 
accordance  with  their  conviction  as  to  the  justice  or 
injustice  of  the  cause  of  each.  Vattel,  however,  taught  ^ 
that  a  neutral,  although  he  may  generally  allow  the 
passage  of  troops  of  the  belhgerents  through  his  terri- 
tory, may  refuse  it  to  a  belhgerent  making  war  for  an 
unjust  cause. 

Although  the  theory  and  practice  of  the  eighteenth 
century  agreed  that  it  was  the  duty  of  neutrals  to  remain 
impartial,  the  impartiahty  demanded  was  not  at  all 
strict.  For  throughout  the  greater  part  of  the  century, 
a  State  was  considered  not  to  violate  neutrality  by 
fm-nishing  one  of  the  belhgerents  with  such  hmited 
assistance  as  it  had  previously  promised  by  treaty.^  In 
this  way  troops  could  be  supphed  by  a  neutral  to  a 
belhgerent,  and  passage  through  neutral  territory  could 
be  granted  to  his  forces.  Secondly,  either  belhgerent 
might  use  the  resources  of  neutrals.  It  was  not  con- 
sidered a  breach  of  neutrahty  for  a  State  to  allow  one 
or  both  belhgerents  to  levy  troops  on  its  territory,  or 
to  grant  letters  of  marque  to  its  merchantmen.  It  is 
true  that  during  the  second  half  of  the  eighteenth 
century,  theory  and  practice  became  aware  that  neu- 
trahty was  not  consistent  with  these,  and  other,  indul- 
gences. But  this  only  led  to  a  distinction  between 
neutrahty  in  the  strict  sense  of  the  term  and  imperfect 
neutrahty.    However,   as  regards  the  duty  of   beUi- 

^  iii-  §  135.  (1913),  pp.  173-181,  and  the  examples 

*  See  Nys  in  R.I.,  2n(i  Ser.  xv.       in  Hall,  §  211. 


388         ON  NEUTRALITY  IN  GENERAL 

gerents  to  respect  neutral  territory,  progress  was  made 
during  this  century.  Whenever  neutral  territory  was 
violated,  reparation  was  asked  for  and  made.  Never- 
theless it  was  considered  lawful  for  a  victor  to  pursue 
a  vanquished  army  into  neutral  territory,  and  for  a 
fleet  to  pursue  ^  a  defeated  enemy  fleet  into  neutral 
territorial  waters. 
First  §  289.  Whereas,  on  the  whole,  the  duty  of  neutrals 

Neu-  to  remain  impartial,  and  the  duty  of  belhgerents  to 
trahty.  rggpect  ucutral  territory,  became  generally  recognised 
during  the  eighteenth  century,  the  members  of  the 
Family  of  Nations  did  not  come  to  an  agreement  during 
this  period  regarding  the  treatment  of  neutral  vessels 
trading  with  belhgerents.  It  is  true  that  the  right  of 
visit  and  search  for  contraband  of  war,  and  the  right  to 
seize  contraband,  were  generally  recognised,  but  in 
other  respects  no  general  theory  and  practice  were 
agreed  upon.  France  and  Spain  upheld  the  rule  that 
neutral  goods  on  enemy  ships  and  also  neutral  ships 
carrying  enemy  goods  could  be  seized  by  belhgerents. 
England,  on  the  other  hand,  while  conceding  from  time 
to  time  the  rule  '  free  ship,  free  goods,'  by  particular 
treaties  with  certain  States,  throughout  the  eighteenth 
century  generally  followed  the  rule  of  the  Consolato  del 
Mare,  according  to  which  enemy  goods  on  neutral 
vessels  might  be  confiscated,  whereas  neutral  goods  on 
enemy  vessels  had  to  be  restored. 

England  also  upheld  the  principle  that  the  commerce 
of  neutrals  should  in  time  of  war  be  restricted  to  the 
same  hmits  as  in  time  of  peace,  since  most  States  in 
time  of  peace  reserved  cabotage  and  trade  with  their 
colonies  for  vessels  of  their  own  merchant  marine.  It 
was  in  1756  that  this  principle  first  came  into  question. 
In  that  year,  during  war  with  England,  France  found 
that  the  naval  superiority  of  England  prevented  her 

»  See  below,  §§  320,  347  (4). 


DEVELOPMENT  OF  NEUTRALITY  389 

from  carrying  on  her  colonial  trade  by  her  own  merchant 
marine,  and  therefore  threw  it  open  to  vessels  of  the 
Netherlands,  which  had  remained  neutral.  England 
then  ordered  her  fleet  to  seize  all  such  vessels  with  their 
cargoes,  on  the  ground  that  they  had  become  incor- 
porated with  the  French  merchant  marine,  and  had 
thereby  acquired  enemy  character.  Ever  since  that 
time  the  above  principle  has  been  commonly  called  the 
'  rule  ^  of  1756,'  although  it  is  now  proved  ^  that,  as 
early  as  1745,  the  Enghsh  Prize  Courts  considered  it  a 
settled  rule  of  law  that  a  neutral  vessel  had  no  right 
in  time  of  war  to  carry  on  such  trade  of  a  belhgerent 
as  was  closed  to  it  in  time  of  peace. 

In  the  practice  of  declaring  enemy  coasts  to  be 
blockaded,  and  condemning  captured  neutral  vessels 
for  breach  of  blockade,  although  the  blockades  were 
by  no  means  always  effective,  England  followed  other 
Powers. 

As  privateering  was  legitimate  and  in  general  use, 
neutral  commerce  was  considerably  disturbed  during 
every  war  between  naval  States.  Now  in  1780,  during 
war  between  Great  Britain,  her  American  colonies, 
France,  and  Spain,  Russia  sent  a  circular  ^  to  England, 
France,  and  Spain,  in  which  she  proclaimed  the  follow- 
ing five  principles  :  (1)  that  neutral  vessels  should  be 
allowed  to  navigate  from  port  to  port  of  belligerents, 

^  The  Immantiel,  (1799)  2  C.  Rob.  upon  the  Fi-ench  coasting  and  colonial 

186.     A  clear  statement  of  the  rule  trade  thrown  open  to  them  during 

and  the  facts  is  given  by  Reddie,  the    war   with    England    as   having 

Researches,  i.  pp.  307-313.     See  also  acquired  enemy  character,  but  also 

the  literature  quoted  below,  §  400  n. ;  those  which  cari-ied   neutral   goods 

Phillimore,    iii.    §§  212-222 ;     Hall,  from    neutral    ports    to   ports    of   a 

§  234 ;  Manning,  pp.  260-267  ;  West-  French  colony.      This  extension  of 

lake,  ii.  p.  294;  Moore,  vii.  §  1180;  the  rule  was  clearly  unjustified,  and 

Boeck,  No.  52;    Dupuis,  Nos.   131-  it  is  not  possible  to  believe  that  it 

133.    Not«  that  the  original  meaning  will  ever  be  revived, 

of  the  rule  of  1756  is  different  from  *  See  Marsden,  Lata  arid  Custom 

the  meaning  it  received  by  its  exten-  of  the  Sea,  ii.    (1916),   p.  436,   who 

sion  in   1793.     From  that  year  on-  mentions  the  case  of  The  Ceres. 

wards,  England  not  only  considered  ^  Martens,   R.,  iii.   p.   158.      See 

those  neutral  vessels  which  embarked  Reddie,  Researches,  i.  pp.  321-357. 


390         ON  NEUTRALITY  IN  GENERAL 

and  along  their  coasts  ;  (2)  that  enemy  goods  on  neutral 
vessels,  contraband  excepted,  should  not  be  seized  by 
belHgerents ;  (3)  that,  with  regard  to  contraband. 
Articles  10  and  11  of  the  Treaty  of  1766  between  Russia 
and  Great  Britain  should  be  apphed  in  all  cases ;  (4) 
that  a  port  should  only  be  considered  blockaded  if  the 
blockading  beUigerent  had  stationed  vessels  there,  so  as 
to  create  an  obvious  danger  for  neutral  vessels  entering 
the  port ;  (5)  that  these  principles  should  be  apphed 
in  the  proceedings  and  judgments  on  the  legahty  of 
prizes.  In  July  1780  Russia  ^  entered  into  a  treaty  with 
Denmark,  and  in  August  1780  with  Sweden,  for  the 
purpose  of  enforcing  those  principles  by  equipping  a 
number  of  men-of-war.  Thus  the  '  Armed  Neutrahty ' 
made  its  appearance.  In  1781  the  Netherlands,  Prussia, 
and  Austria,  in  1782  Portugal,  and  in  1783  the  Two 
Sicihes  joined  the  league.  France,  Spain,  and  the 
United  States  ^  of  America  accepted  its  principles  with- 
out formally  joining.  The  war  between  England,  the 
United  States,  France,  and  Spain  was  terminated  in  1783, 
and  the  war  between  England  and  the  Netherlands  in 
1784  ;  but  in  the  treaties  of  peace  the  principles  of  the 
'  Armed  Neutrahty  '  were  not  mentioned.  This  league 
had  no  direct  practical  consequences,  since  England 
retained  her  former  standpoint.  Moreover,  some  of 
the  States  that  had  joined  it  acted  contrary  to  some 
of  its  principles  when  they  themselves  went  to  war — 
Sweden,  for  example,  during  her  war  with  Russia  in 
1788-1790,  and  France  and  Russia  in  1793 — and  some  of 
them  concluded  treaties  in  which  were  stipulations  at 
variance  with  those  principles.  Nevertheless,  the  First 
Armed  Neutrality  has  proved  of  great  importance, 
because  its  principles  furnished  the  basis  of  the  Declara- 
tion of  Paris  of  1856. 

^  Martens,  R.,  iii.  pp.  189,  198. 

*  See  Albrecht  in  Z.  V.,  vi.  (1912),  pp.  436-449. 


DEVELOPMENT  OF  NEUTRALITY  391 

§  290.  The  wars  of  the  French  Revolution  and  the  The 
Napoleonic  Wars  showed  that  the  time  was  not  yet  ripe  Revolu- 
for  the  progress  1  aimed  at  by  the  First  Armed  Neutrahty.  Jj^°J^  '^"^ 
Russia,  the  very  same  Power  which  had  initiated  the  «iieond 
Armed    Neutrality     in     1780     under     the    Empress  nou-^ 
Catharine  n.  (1762-1796),  joined  Great  Britain  in  1793  ^'''^'^^' 
in  order  to  interdict  all  neutral  navigation  into  ports 
of  France,  with  the  intention  of  subduing  France  by 
famine.    Russia  and  England  justified  their  attitude 
by  the  exceptional  character  of  their  war  against  France, 
which  had  proved  to  be  the  enemy  of  the  security  of  all 
other  nations.     The  French  Convention  answered  with 
an  order  to  the  French  fleet  to  capture  all  neutral  ships 
carrying  provisions  to  enemy  ports,  or  carrying  enemy 
goods. 

But  although  Russia  had  herself  acted  in  defiance  of 
the  principles  of  the  First  Armed  Neutrahty,  she  called 
a  Second  Armed  Neutrahty  into  existence  in  1800,  during 
the  reign  of  the  Emperor  Paul.  The  Second  Armed 
Neutrahty  was  caused  by  the  refusal  of  England  to 
concede  immunity  from  visit  and  search  to  neutral 
merchantmen  under  convoy.^  Sweden  was  the  first 
to  claim  in  1653,  dm'ing  war  between  Holland  and 
Great  Britain,  that  the  belhgerents  should  not  visit 
and  search  Swedish  merchantmen  under  convoy  of 
Swedish  men-of-war,  provided  that  a  declaration  was 
made  by  the  men-of-war  that  the  merchantmen  had  no 
contraband  on  board.  Other  States  later  raised  the 
same  claim,  and  many  treaties  were  concluded  which 
stipulated  the  immmiity  from  visit  and  search  of  neutral 
merchantmen  under  convay.  But  Great  Britain  refused 
to  recognise  the  principle,  and  when,  in  July  1800,  a 
British  squadron  captured  a  Danish  man-of-war  and 
her  convoy  of  several  merchantmen  for  having  resisted 

^  See   Reddie,   Researches,  i.   pp.  *  See  below,  §  417. 

418-468,  ii.  pp.  1-232. 


392  ON   NEUTRALITY   IN   GENERAL 

visit  and  search,  Russia  invited  Sweden,  Denmark,  and 
Prussia  to  renew  the  '  Armed  Neutrahty,"  and  to  add 
to  its  principles  the  further  principle,  that  belhgerents 
should  not  have  a  right  of  visit  and  search  in  case  the 
commanding  officer  of  the  man-of-war,  under  whose 
convoy  neutral  merchantmen  were  saihng,  should 
declare  that  the  convoyed  vessels  did  not  carry  contra- 
band of  war.  In  December  1800  Russia  concluded 
treaties  with  Sweden,  Denmark,  and  Prussia  conse- 
cutively, by  which  the  '  Second  Armed  Neutrahty  ' 
became  a  fact.^  But  it  lasted  only  a  year  on  account 
of  the  assassination  of  the  Emperor  Paul  of  Russia  on 
March  23,  and  the  defeat  of  the  Danish  fleet  by  Nelson 
on  April  2,  1801,  in  the  battle  of  Copenhagen.  Never- 
theless, the  Second  Armed  Neutrality  hkewise  proved  of 
importance,  for  it  led  to  a  compromise  in  the  '  Maritime 
Convention '  concluded  between  England  and  Russia 
under  the  Emperor  Alexander  iv  on  June  17,  1801,  at 
St.  Petersburg,^  to  which  Denmark  and  Sweden  acceded 
on  October  23,  1801.  By  Article  3  of  this  treaty, 
England  recognised,  as  far  as  Russia  was  concerned,  the 
rules  that  neutral  vessels  might  navigate  from  port  to 
port,  and  on  the  coasts,  of  belhgerents,  and  that 
blockades  must  be  effective.  But  in  the  same  article 
England  forced  Russia  to  recognise  the  rule  that  enemy 
goods  on  neutral  vessels  might  be  seized,  and  did  not 
recognise  the  immunity  of  neutral  vessels  imder  convoy 
from  visit  and  search,  although,  by  Article  4,  she  con- 
ceded that  the  right  should  in  that  case  be  exercised 
only  by  men-of-war,  and  not  by  privateers. 


^  Martens,   R.,  vii.    pp.    127-202.  p.  97)  denies   that  the  stipulations 

See  also  Martens,  Causes  cdlebres,  iv.  of  the  '  Maritime  Convention  '  con- 

pp.  219-302.  tained  a   compromise,  because  they 

did  not  concern  all  maritime  Powers  ; 

*  Martens,   R.,    vii.    p.   260,    and  but  surely  they  did  constitute  a  com- 

Krauel    in    Festschrift   der   Berliner  promise  between  England  on  the  one 

JurisfenfakultdtfurHeinrichBrunner  hand,    and,    on   the    other,    Russia, 

(1914),  pp.  69-107.     Krauel  (op- ci'f.,  Denmark,  and  Sweden. 


DEVELOPMENT  OF  NEUTRALITY  393 

But  this  compromise  did  not  last  long.  When,  in 
November  1807,  war  broke  out  between  Russia  and 
England,  Russia,  in  her  declaration  of  war,^  annulled 
the  Maritime  Convention  of  1801,  proclaimed  anew 
the  principles  of  the  First  iVi'med  Neutrahty,  and 
asserted  that  she  would  never  again  drop  them. 
Great  Britain,  in  her  counter-declaration,-  proclaimed 
her  return  to  those  principles  against  which  the  First 
and  the  Second  Armed  Neutralities  were  directed,  and 
she  was  able  to  point  out  that  no  Power  had  appHed 
these  principles  more  severely  than  had  Russia  under 
the  Empress  Catharine  ii.  after  she  had  initiated  the 
First  Armed  Neutrahty. 

Thus  all  progress  made  by  the  Maritime  Convention 
of  1801  fell  to  the  ground.  Times  were  not  favourable 
to  any  progress.  After  Napoleon's  Berhn  Decrees  in 
1806,  ordering  the  boycott  of  all  EngHsh  goods,  England 
declared  all  French  ports,  and  all  the  ports  of  the  aUies 
of  France,  blockaded,  and  ordered  her  fleet  to  capture 
all  ships  destined  to  them.  Russia,  after  having 
solemnly  asserted  in  her  declaration  of  war  against 
England  in  1807  that  she  would  never  again  drop  the 
principles  of  the  First  Armed  Neutrahty,  by  Article  2 
of  an  ukase  ^  pubhshed  on  August  1,  1809,  \aolated  one 
of  the  most  important  of  these  principles,  by  ordering 
neutral  vessels  carrying  enemy  (Enghsh)  goods  to  be 
stopped,  and  the  enemy  goods  seized,  together  with 
the  vessels  themselves  if  more  than  half  their  cargoes 
consisted  of  enemy  goods. 

§  291.  The  development  of  the  rules  of  neutrahty  Neu- 
diu-ing    the    nineteenth    century    was    due    to    f  oiu:  ^^^^Jg 

factors.  t^«  Nine- 

.    ,     -  teenth 

(1)  The  most  prominent  and  influential  factor  was  Century. 
the  attitude  of  the  United  States  of  America  towards 

^  Martens,  R.,  viii.  p.  706.  •  Martens,  N.R.,  i.  p.  484. 

*  Martens,  R.,  viii.  p.  710. 


394  ON  NEUTRALITY  IN  GENERAL 

neutrality  from  1793  to  1818.  When  England  in  1793 
joined  the  war  which  had  broken  out  in  1792  between 
the  so-called  First  CoaUtion  and  France,  Genet,  the 
French  diplomatic  envoy  accredited  to  the  United 
States,  granted  letters  of  marque  to  American  merchant- 
men manned  by  American  citizens  in  American  ports. 
These  privateers  were  destined  to  cruise  against  English 
vessels,  and  French  Prize  Courts  were  set  up  by  the 
French  minister  in  connection  with  French  consulates 
in  American  ports.  On  the  complaint  of  Great  Britain, 
the  Government  of  the  United  States  ordered  these 
privateers  to  be  disarmed  and  the  French  Prize  Courts 
to  be  closed  down.^  As  the  trial  of  Gideon  Henfield,^ 
who  was  acquitted,  proved  that  the  Municipal  Law  of 
the  United  States  did  not  prohibit  the  enhstment  of 
American  citizens  in  the  service  of  a  foreign  belhgerent, 
Congress  in  1794  passed  an  Act  temporarily  forbidding 
American  citizens  from  accepting  letters  of  marque 
from  a  foreign  belhgerent  or  enlisting  in  the  army  or 
navy  of  a  foreign  State,  and  forbidding  the  fitting  out 
and  arming  of  vessels  intended  as  privateers  for  foreign 
belhgerents.  Other  Acts  were  passed  from  time  to 
time.  Finally,  on  April  20,  1818,  Congress  passed  a 
Foreign  Enhstment  Act,  which  contained  provisions  in- 
tended to  be  permanent,  and  was  the  basis  of  the  British 
Foreign  Enhstment  Act  of  1819.  Thus  the  United 
States  initiated  the  present  practice,  according  to  which 
it  is  the  duty  of  neutrals  to  prevent  the  fitting  out  and 
arming  on  their  territory  of  cruisers  for  belhgerents,  to 
prevent  enhstment  on  their  territory  for  belhgerents, 
and  the  like. 

(2)  Of  great  importance  became  the  permanent 
neutrahsation  of  Switzerland  and  Belgium.  These 
States  naturally  adopted,  and  retained,  throughout 
every  war  during  that  century  an  exemplary  attitude 

1  See  Wharton,  iii.  §§  395-396.  *  See  Taylor,  §  609. 


DEVELOPMENT  OF  NEUTRALITY  395 

of  impartiality  towards  the  belligerents ;  and  each  time 
war  broke  out  in  their  vicinity,  they  took  effectual 
mihtary  measures  to  prevent  belhgerents  from  using 
their  neutral  territory  and  resources. 

(3)  The  third  factor  was  the  Declaration  of  Paris  of 
1856,  which  incorporated  into  International  Law  the 
rule  *  free  ship,  free  goods,'  the  rule  that  neutral  goods 
on  enemy  ships  camiot  be  appropriated,  and  the  rule 
that  blockades  must  be  effective. 

(4)  The  fourth  factor  was  the  general  development 
of  the  mihtary  and  naval  resources  of  all  members  of 
the  Family  of  Nations.  As  during  the  second  half  of 
the  nineteenth  century,  all  the  larger  States  were 
obhged  to  keep  their  armies  and  navies  in  constant 
readiness  for  war,  it  followed  that,  whenever  war 
broke  out,  each  belhgerent  was  anxious  not  to  in- 
jure neutral  States  lest  they  should  take  the  part  of 
the  enemy.  On  the  other  hand,  neutral  States  were 
always  anxious  to  fulfil  the  duties  of  neutrahty  for 
fear  of  being  drawm  into  the  war.  Thus  the  general 
rule,  that  the  development  of  International  Law  has 
been  fostered  by  the  interests  of  the  members  of  the 
Family  of  Nations,  apphes  also  to  neutrahty.  Unless 
it  had  been  to  the  interest  of  belhgerents  to  remain 
during  war  on  good  terms  with  neutrals,  and  to  the 
interest  of  neutrals  not  to  be  drawn  into  war,  the 
institution  of  neutrahty  would  never  have  developed 
so  favourably  as  it  actually  did  during  the  nineteenth 
century. 

§  292.  This  development  continued  up  to  the  out-  Neu- 
break  of  the  World  War  in  1914.     The  South  African  J;^^^? 
and  Eusso- Japanese  Wars  produced  several  incidents  '^^^^^^' 
which  gave  occasion  for  the  Second  Hague  Conference  Century. 
of  1907  to  bring  neutrahty  within  the  range  of  its 
dehberations,  and  to  agree  upon  Convention  v.  respect- 
ing the  Rights  and  Duties  of  Neutral  Powers  and  Persons 


396  ON  NEUTRALITY  IN  GENERAL 

in  War  on  Land,^  and  Convention  xiii.  respecting  the 
Rights  and  Duties  of  Neutral  Powers  in  Naval  War.^ 
Moreover,  some  of  the  other  conventions  agreed  upon 
at  this  conference,  although  they  do  not  directly  concern 
neutral  Powers,  are  indirectly  of  great  importance  to 
them.  Thus  Convention  vn.  relative  to  the  Conver- 
sion of  Merchant-ships  into  War-ships  indirectly  concerns 
neutral  trade  as  well  as  the  Convention  viii.  relative 
to  the  Laying  of  Automatic  Submarine  Contact  Mines, 
and  Convention  xi.  relative  to  certain  Restrictions  on 
the  Exercise  of  the  Right  of  Capture.  By  Convention 
XII.  the  conference  agreed  upon  the  estabhshment  of  an 
International  Prize  Court  to  serve  as  a  Court  of  Appeal 
from  decisions  of  the  Prize  Courts  of  either  belligerent 
which  concerned  the  interests  of  neutral  Powers  or  their 
subjects.  But  this  convention  secured  no  ratifications, 
and  in  order  to  find  a  basis  of  generally  accepted  prize 
law  on  which  the  proposed  court  might  found  its  judg- 
ments, a  Naval  Conference  of  London  met  in  1908,  and 
in  1909  produced  the  Declaration  of  London  concern- 
ing the  laws  of  naval  war,  which  represented  a  code 
comprising  rules  respecting  blockade,  contraband,  un- 
neutral service,  destruction  of  neutral  prizes,  transfer 
to  neutral  flag,  enemy  character,  convoy,  resistance  to 
search  and  compensation. 
During  the  Turco-Itahan  War,  the  first  naval  war 

^  All   the   States    represented   at  -  This  convention  was  signed  by 

the  conference  signed  this  convention  all   the  Powers  represented  at  the 

except  China  and  Nicaragua,  which  conference,  except  the  United  States 

acceded  later,  and  at  least  twenty-  of  America,  China,  Cuba,  Nicaragua, 

three  States  have  ratified  it.     But  and  Spain  ;    but  the  United  States, 

Great  Britain  entered  a  reservation  China,  and  Nicaragua  acceded  later, 

against   Articles    16-18    (see   above,  At  least  twenty  Powers  have  ratified, 

§  88),  and  Argentina  against  Article  but  there  are  a  number  of  reserva- 

18,  and  Great  Britain  has  not  ratified.  tions.     See  above,  vol.  i.  §  568a  ;  and 

See  above,  vol.  i.  §  568a  ;   and  L6-  L6monon,  pp.  555-603 ;  Higgins,  pp 

monon,    pp.   407-425  ;    Higgins,  pp.  457-483  ;    Bernsten,    §   13  ;    Boidin, 

290-294;  Boidin,  pp.  121-134;  Nip-  pp.  237-247;   Dupuis,  Guerre,  Nos 

pold,  §  25  ;   Scott,   Conferences,  pp.  277-330 ;  Nippold,  §  34 ;  Scott,  Con 

541-555;    Bustamante   in   A.  J.,    ii.  /erences,  pp.  620-648  ;  Hyde  in  .4./. 

(1908),  pp.  95-120.  ii.  (1908),  pp.  507-527. 


DEVELOPMENT  OP  NEUTRALITY  397 

fought  after  the  declaration  had  been  drawn  up,  both 
belligerents  complied  with  it,  although  it  had  not  been 
ratified  by  any  Power,  and  Turkey  was  not  even  a  signa- 
tory. When  the  World  War  came,  the  declaration  was 
still  unratified  ;  but  the  United  States  of  America  at 
once  invited  both  groups  of  belhgerents  to  adopt  it, 
although  it  had  not  become  legally  binding.  Germany 
and  Austria-Hungary  agreed  on  condition  that  their 
enemies  did  the  same  ;  but  Great  Britain,  France,  and 
Russia  were  only  prepared  to  adopt  the  declaration 
with  certain  modifications.^  This  they  in  fact  did 
during  the  first  part  of  the  war.  Great  Britain,  for 
example,  by  an  Order  in  Council  of  August  20,  1914,^ 
put  the  declaration  into  force,  rejecting,  however,  its 
hsts  of  contraband,  and  modifying  its  rules  as  to  false 
papers,^  destination  of  contraband,*  and  knowledge  of 
the  existence  of  a  blockade.^  This  order  also  directed 
the  courts  to  regard  the  General  Report  of  the  Drafting 
Committee  as  an  authoritative  statement  of  the  mean- 
ing and  intention  of  the  declaration.®  For  the  order 
of  August  20,  1914,  a  new  order  was  substituted  on 
October  29,  1914."^  By  this  new  order  the  declara- 
tion remained  in  force,  but  with  additional  modifica- 
tions as  to  the  carriage  of  contraband  ^  and  without 
any  direction  as  to  the  General  Report.  A  further 
order  of  October  20,  1915,^  withdrew  Article  57,  which 
provided  that  the  neutral  or  enemy  character  of  a 
vessel  was  to  be  determined  by  the  flag  which  she  was 
entitled  to  fly ;  ^^    and  an  order  of  March  30,  1916," 

*  Above,  vol.  i.  §  50a  ;  A.J.,  ix.        in   Council    (No.    2),    1914;  London 
(1915),  Special  Supplement,  pp.  1-8.        Gazette,  October  30,  1914. 

-  The  Declaration  of  London  Order  *  See  below,  §  403a. 

in   Council    (No.    1),    1914;   London  '  The  Declaration  of  London  Order 

Gazette,  August  21,  1914.  in   Council,   1915;    London  Gazette, 

«  See  below,  §  404.  October  26,  1915. 

*  See  below,  §  403a.  "  See  above,  §  89. 

'  See  below,  §  384.  "  The     Declaration    of     London 

*  See  above,  vol.  i.  §554(8).  Order    in    Council,  11916;    London 
'  The  Declaration  of  London  Order       Gazette,  March  31,  1916. 


398  ON  NEUTRALITY   IN   GENERAL 

withdrew  Article  19,  relating  to  capture  for  breach  of 
blockade/  and  made  further  modifications  in  the  rules 
as  to  contraband. 

This  was  the  last  of  the  Declaration  of  London  Orders 
in  Council.  For  by  a  joint  memorandum  of  July  7, 
1916,'^  Great  Britain  and  France  notified  the  neutral 
Powers  that,  whereas  at  the  beginning  of  the  war  the 
Alhed  Governments  had  adopted  the  declaration  because 
it  seemed  to  present  in  its  main  lines  a  statement  of 
the  rights  and  duties  of  belhgerents  based  on  the  experi- 
ence of  previous  naval  wars,  as  the  World  War  had 
developed  it  became  clear  that  its  rules,  while  not  in 
all  respects  improving  the  safeguards  afforded  to 
neutrals,  did  not  provide  belligerents  with  the  most 
effective  means  of  exercising  their  admitted  rights. 
These  rules,  they  argued,  could  not  stand  the  strain 
imposed  by  the  test  of  rapidly  changing  conditions  and 
tendencies  which  could  not  have  been  foreseen,  and 
they  had  therefore  come  to  the  conclusion  that  they 
must  confine  themselves  simply  to  applying  the  historic 
and  admitted  rules  of  the  Law  of  Nations.  In  pursu- 
ance of  this  pohcy  Great  Britain,  by  the  Maritime 
Rights  Order  in  Council  of  July  7,  1916,^  withdrew  all 
the  Declaration  of  London  Orders  in  Council,  declared 
that  she  would  exercise  her  belhgerent  rights  at  sea  in 
strict  accordance  with  the  Law  of  Nations,  and  laid 
down  four  special  rules  with  regard  to  contraband  * 
and  continuous  voyage.^ 

From  July  7,  1916,  therefore,  the  Declaration  of 
London  was  no  longer  apphed,  even  in  part,  and  it 
still    remains    unratified.^    Uncertainties    in    maritime 

1  See  below,  §  385a.  ^  See  below,  §§  385a,  403a. 

*  Pari.  Papers,  Misc.,  No.  22  ^  For  the  arguments  for  and 
(1916),  Cd.  8293  ;  and  above,  vol.  i.  against  ratification  as  they  appeared 
§  50a.  before  the  World   War,  see  Smith, 

^  Ibid,  and  London  Gazette,  July  International  Law,  4th  ed.  (1911), 
11,  1916.  pp.  353-371,  and  the  literature  cited 

*  See  below,  §§  391 -406a.  above,  vol.  i.  §  5686  n. 


DEVELOPMENT  OF  NEUTRALITY  399 

law,  which  the  declaration  was  intended  to  abolish, 
were  before  the  war  regarded  as  among  the  chief 
obstacles  to  the  proposed  International  Prize  Court, 
and  as  many  uncertainties  still  exist  to-day.  There  is, 
therefore,  no  hope  of  seeing  that  court  established, 
unless  another  attempt  to  codify  prize  law  proved  to 
be  more  successful  than  the  attempt  made  at  the 
Naval  Conference  of  London. 

Apart  from  the  fate  of  the  Declaration  of  London,  the 
World  War  wrought  many  changes  in  current  concep- 
tions of  neutrahty.  All  the  Great  Powers  and  very 
many  others  took  part  in  the  fighting,  and  among 
their  war-tried  peoples  the  view  was  widely  held  that 
a  neutral  '  shirks  his  share  of  the  burden  of  humanity.' 
Such  an  attitude  was  natural  enough  in  the  circum- 
stances, but  may  well  disappear  in  years  to  come. 
More  enduring  perhaps  will  be  the  lesson  then  learned 
that  in  a  protracted  modern  war  the  position  of  neutrals 
becomes  hardly  more  tolerable  than  that  of  belligerents, 
while  the  increased  value  of  neutral  support,  and  the 
great  efforts  which  the  belHgerents  will  make  to  obtain 
it,  may  make  a  pohcy  of  neutrahty  more  difficult  to 
follow.  Moreover,  it  is  now  understood  that  to  make 
neutrahty  easy  is  not  necessarily  to  lessen  the  danger 
of  war,  because  a  State  may  be  encouraged  to  begin 
hostihties  by  a  conviction  that  its  neighbours  will  stand 
aside. 

Reflections  such  as  these  may  have  inspired  Article  16 
of  the  Covenant  of  the  League  of  Nations,  which  would 
abohsh  neutrahty  in  all  wars  in  which  the  League  takes 
part.  Accordingly,  the  institution  of  neutrahty  has 
entered  upon  a  new  phase,  and  might  in  future  find  a 
place  only  in  wars  waged  apart  from  the  League. 
Whether  such  wars  wifl  be  many  or  few  cannot  yet  be 
foretold. 


400  ON  NEUTRALITY  IN  GENERAL 


II 

CHARACTERISTICS   OF  NEUTRALITY 

Grotius,  iii.  c.  17,  §  3 — Bynkershoek,  Quaettionea  Juris  publici,  i.  c.  9 — Vattel, 
iii.  §§  103-104— Hall,  §§  19-20— Lawrence,  §  222— Westlake,  ii.  pp.  190- 
198— Phillimore,  iii.  §§  136-137— Hershey,  No.  447— Halleck,  ii.  p.  161 
—Taylor,  §  614— Moore,  ^•ii.  §§  1287-1291— Walker,  §  54— Wheaton, 
§  412— Bluntschli,  §§  742-744— Heffter,  §  144— Geffcken  in  Holtzeridorff, 
iv.  pp.  605-606— Gareis,  §  87— Liszt,  §  42— Ullmann,  §  190— Bonfils, 
Nos.  1441  and  1443— Despagnet,  No.  686— Rivier,  ii.  pp.  368-370— 
Pradier-Fod^r^,  viii.  Nos.  3222-3224,  3232-3233— Nys,  iii.  pp.  547-559— 
Calvo,  iv.  §§  2491-2493— Fiore,  iii.  Nos.  1536-1541,  and  Code,  Nos. 
1791-1798— Martens,  ii.  §  129— Dupuis,  Nos.  316— M^rignhac,  iii".  pp. 
496-509— Fillet,  pp.  273-275— Heilborn,  System,  pp.  336-351— Perels 
§  38— Testa,  pp.  167-172— Kleen,  i.  §§  1-4— Hautefeuille,  i.  pp.  195-200 
— Gessner,  pp.  22-23 — Schopfer,  Le  Principe  juridique  de  la  Neutrality 
et  son  Evolution  dans  V  Histoire  de  la  Gu£rre  (1894) — Lifschiitz  in  Z.I., 
xxvii.  (1918),  pp.  40-124. 

Concep-  §  293.  Such  States  as  do  not  take  part  in  a  war 
Neu-°^  between  other  States  are  neutrals.^  The  term  '  neu- 
trality, trahty '  is  derived  from  the  Latin  neuter.  NeutraHty 
may  be  defined  as  the  attitvde  of  imfartiality  adopted  by 
third  States  towards  belligerents  and  recognised  by  belli- 
gerents, such  attitude  creating  rights  a7id  duties  between 
the  impartial  States  atid  the  belligerents.  Whether  or  not 
a  third  State  will  adopt  an  attitfude  of  impartiahty  at 
the  outbreak  of  war  is  not  a  matter  for  International 
Law  but  for  International  Pohtics.  Therefore,  unless 
a  previous  treaty  stipulates  it  expressly,  no  duty  exists 
for  a  State,  according  to  International  Law,  to  remain 
neutral  when  war  breaks  out.  Every  sovereign  State, 
as  an  independent  member  of  the  Family  of  Nations,  is 
master  of  its  own  resolutions,  and  the  question  of  re- 
maining neutral  or  not  at  the  outbreak  of  war  is,  in 
absence  of  a  treaty  stipulating  otherwise,  one  of  poHcy 
and  not  of  law.     However,  all  States  which  do  not 

^  Grotius   (iii.   c.    17)   calls   them       non   hoates    qui  neutrarum  partium 
medii  in  hello  ;  Bynkershoek  (i.  c.  9)       aunt. 


CHARACTERISTICS   OF  NEUTRALITY  401 

expressly  declare  the  contrary  by  word  or  action,  are 
supposed  to  be  neutral,  and  the  rights  and  duties  arising 
from  neutrahty  come  into  existence,  and  remain  in 
existence,  through  the  mere  fact  of  a  State  taking  up  an 
attitude  of  impartiahty,  and  not  being  drawn  into  the 
war  by  the  belhgerents.  A  special  assertion  of  intention 
to  remain  neutral  is  not  therefore  legally  necessary  on 
the  part  of  neutral  States,  although  they  often  expressly 
and  formally  proclaim  ^  their  neutrahty. 

§  294.  Since  neutrahty  is  an  attitude  of  impartiahty,  Neu- 
it  excludes  such  assistance  and  succour  to  one  of  the  Attitude" 
belhgerents  as  is  detrimental  to  the  other,  and,  fm-ther,  "^J^^'^'^^.y 
such  injuries  to  the  one  as  benefit  the  other.  But  it 
requires,  on  the  other  hand,  active  measures  from 
neutral  States.  For  neutrals  must  prevent  belhgerents 
from  making  use  of  their  neutral  territories,  and  of  their 
resom'ces,  for  mihtary  and  naval  pm'poses  diuing  the 
war.  This  apphes  not  only  to  actual  fighting  on 
neutral  territories,  but  also  to  the  transport  of  troops, 
•war  materials,  and  provisions  for  the  troops,  the  fitting 
out  of  men-of-war  and  privateers,  the  activity  of  Prize 
Courts,  and  the  hke.  Fm-ther,  neutrals  must  prevent 
each  belhgerent  fi-om  interfering  with  their  legitimate 
intercom*se  with  the  other  belhgerent  through  com- 
merce and  the  hke,  because  a  belhgerent  cannot  be  ex- 
pected passively  to  suSer  vital  damage  resulting  to  him 
from  the  violation  by  his  enemy  of  a  rule  which,  while 
it  operates  directly  in  favour  of  neutrals,  indirectly 
operates  in  his  favour  as  well. 

But  it  is  important  to  remember  that  the  necessary 
attitude  of  impartiahty  is  not  incompatible  with  sym- 
pathy with  one  belhgerent,  and  antipathy  against  the 
other,  so  long  as  these  feehngs  do  not  find  expression 
in  actions  violating  impartiahty.  Thus,  not  only  pubhc 
opinion  and  the  press  of  a  neutral  State,  but  also  its 

1  See  below,  §  309. 
VOL.   IL  2C 


402  ON  NEUTRALITY  IN  GENERAL 

Government/  may  show  their  sympathy  to  one  party 
or  another  without  thereby  violating  neutrahty.  More- 
over, acts  of  hmnanity  on  the  part  of  neutrals  and  their 
subjects,  such  as  the  sending  to  mihtary  hospitals  of 
doctors,  medicine,  provisions,  dressing  material,  and 
the  hke,  and  the  sending  of  clothes  and  money  to 
prisoners  of  war,  can  never  be  construed  as  acts  of  par- 
tiahty,  even  if  these  comforts  are  provided  for  the 
wounded  and  the  prisoners  of  one  belhgerent  only. 

Again,  the  necessary  attitude  of  impartiaUty  due  to 
the  fact  that  neutrals  have  nothing  to  do  with  quarrels 
between  the  belhgerents,  does  not  compel  them  to 
remain  inactive  when  a  belhgerent  in  carrying  on  hos- 
tihties  violates  the  rules  of  International  Law.  On  the 
contrary,  as  has  been  pointed  out  above,^  neutrals  have 
then  a  right  to  intervene,  although — as  the  law  stands 
at  present — they  have  no  duty  to  do  so. 
Neu-  s  295.  Since  neutrahty  is  an  attitude  during  a  state 

tralityan      /*  .  *^  .  .    ,      .°-  ^ 

Attitude  01  War  ouly,  it  calls  mto  existence  special  rights  and 
Rfghts^  duties  which  do  not  generally  obtain.  They  come  into 
a^'i.  existence  through  the  outbreak  of  war  having  been 
notified,  or  having  otherwise  ^  unmistakably  become 
known  to  third  States  who  take  up  an  attitude  of  im- 
partiaUty, and  are  not  dragged  into  the  war  by  the 
belhgerents  ;  they  expire  ipso  facto  with  the  termination 
of  the  war,  or  with  the  outbreak  of  war  between  neutrals 
and  a  belhgerent. 

Rights  and  duties  deriving  from  neutrahty  do  not  exist 
before  the  outbreak  of  war,  although  it  may  be  expected 
every  moment.  Even  a  so-cahed  neutrahsed  State,  hke 
Switzerland,  has  during  time  of  peace  no  duties  con- 
nected with  neutrality,  although  as  a  neutrahsed  State 

^  See,  however,  Geffcken  in  Holt-  contrary. 

zendorff,    iv.    p.   656,  and  Franken-  ,       ,    .    e  ,„-  ia^         i    ••    e  oj^ 

bach,  DieRechisatellungvon  neutralen  ^o^-  ^-  §  13o  (4) ;  vol.  ii.  §  246. 

Staatsangehorigen  in  kriegfiihrenden  ^  See  Article  2  of  Hague  Conven- 

Staaten  (1910),  p.  53,  who  assert  the  tion  iii. 


CHARACTERISTICS   OF  NEUTRALITY  403 

it  has  even  then  certain  duties.  These  duties  are  not 
duties  connected  with  neutraUty,  but  duties  imposed 
upon  the  neutrahsed  State  as  a  condition  of  its  neutrahsa- 
tion.  '  They  incUide  restrictions  for  the  purpose  of  safe- 
guarding the  neutrahsed  State  from  being  drawn  into 
war.^ 

§  296.  As  International  Law  is  a  law  between  States  Neu- 
only  and  exclusively,  neutrahty  is  an  attitude  of  im-  Attitude" 
partiahty  on  the  part  of  States,  and  not  on  the  part  "^  s^^^- 
of  individuals.^    Individuals  derive  neither  rights  nor 
duties,    according    to    International    Law,    from    the 
neutrahty   of   those   States   whose   subjects   they   are. 
Neutral  States  are  indeed  obhged  by  International  Law 
to  prevent  their  subjects  from  committing  certain  acts, 
but  the  duty  of  these  subjects  to  comply  with  such 
injunctions  of  their  sovereigns  is  a  duty  imposed  upon 
them  by  Municipal  Law,  not  by  International  Law. 
BeUigerents,  on  the  other  hand,  are  indeed  permitted  by 
International  Law  to  punish  subjects  of  neutrals  for 
breach  of  blockade,  for  carriage  of  contraband,  and  for 
rendering  unneutral  service  to  the  enemy  ;    but  the 
duty  of  subjects  of  neutrals  to  comply  with  these  in- 
junctions of  belhgerents  is  a  duty  imposed  upon  them 
by  these  very  injunctions  of  the  belhgerents,  and  not  by 
International  Law.     Although  as  a  rule  a  State  has 
no  jurisdiction  over  foreign  subjects  on  the  open  sea,^ 
International  Law  gives  each  belhgerent  an  exceptional 
right  to  punish  foreign  subjects  by  confiscation  of  cargo, 
and  in  certain  circumstances  of  the  vessel  itself,  in 
case  their  vessels  break  blockade,  carry  contraband,  or 
render  unneutral  service  to  the  enemy  :    but  pmiish- 

^  See  above,  vol.  i.  §  96.  in    a   war    as   '  neutrals.'       Again, 

*  It  is  inaccurate  to  speak  (as  is  belligerents  occupying  enemy  terri- 

commonly  done  in  certain  cases)  of  tory  frequently  compel  enemy  indi- 

individuals   as   being  neutral.     For  \aduals  who  are  not  members  of  the 

instance,  Article  16  of  Hague  Con-  armed  forces  of  the  enemy  to  take  a 

vention  v.   designates  the  nationals  so-called  'oath  of  neutrality.' 
of  a  State  which  is  not  taking  part  *  See  above,  vol.  i.  §  146. 


404  ON  NEUTRALITY   IN   GENERAL 


ment  ^  is  threatened  and  executed  by  the  belHgerents, 
not  by  International  Law.  Therefore,  if  neutral  mer- 
chantmen commit  such  acts,  they  neither  violate 
neutrahty  nor  do  they  act  against  International  Law ; 
they  simply  violate  injunctions  of  the  belhgerents 
concerned.  If  they  choose  to  run  the  risk  of  punish- 
ment in  the  form  of  losing  their  property,  this  is  their 
own  concern,  and  their  neutral  home  State  need  not 
prevent  them  from  doing  so.  But  to  the  right  of 
belligerents  to  punish  subjects  of  neutrals  for  the  acts 
specified  corresponds  the  duty  of  neutral  States  to 
acquiesce  in  the  exercise  of  this  right  by  either  belh- 
gerent. 

Apart  from  carriage  of  contraband,  breach  of  blockade, 
and  unneutral  service  to   the  enemy,   which  a   beUi- 
gerent  may  punish  by  capturing  and  confiscating  the 
vessels  or  goods  concerned,   subjects  of  neutrals  are 
perfectly  free  in  their  movements,  and  neutral  States 
have  in  particular  no  duty  to  prevent  their  subjects 
from  selling  arms,  munitions,  and  provisions  to  a  belli- 
gerent, from  enhsting  in  his  forces,  and  the  like. 
No  Cessa-     §  297.  NcutraHty  as  an  attitude  of  impartiahty  in- 
tercourse volves   the   duty   of   abstaining   from   assisting   either 
diu-ing      belhgerent  w^h  ether  actively  or  passively ;   but  it  does 
traiity      not  iuvolvc  a  duty  to  break  off  all  intercom^se  with  the 
Neiltrai's   belhgcreuts.     Apart    from    certain    restrictions    neces- 
^erentf ^^  sitatcd  by  impartiality,  all  intercourse  between  belh- 
gerents and  neutrals  takes  place  as  before,  a  condition 
of  peace  prevaihng  between  them  in  spite  of  the  war 
between  the  belhgerents.     This  apphes  particularly  to 
the  working  of  treaties,  to  diplomatic  intercom'se,  and 
to  trade.     But  indirectly,  of  course,  the  condition  of 

^  Schramm,  pp.  39-41,  argues  looks  the  fact  that  such  confisca- 
against  the  general  opinion  that  tion  is  not  a  punishment  threatened 
confiscation  of  vessel  and  cargo  for  by  International  Law,  but  only  by 
breach  of  y)locka(le,  carriage  of  con-  the  belligerents,  who  by  Interna- 
traband,  and  the  like,  bears  the  tional  Law  are  permitted  to  in- 
character  of  punishment.     He  over-  flict  it. 


1 


CHARACTERISTICS  OF  NEUTRALITY  405 

war  between  belligerents  may  have  a  disturbing  in- 
fluence upon  intercourse  between  belligerents  and 
neutrals.  Thus  the  treaty  rights  of  a  neutral  State 
may  be  interfered  with  through  occupation  of  enemy 
territory  by  a  belhgerent ;  its  subjects  hving  on  enemy 
territory  bear  in  a  sense  enemy  character ;  its  subjects 
trading  with  the  beUigerents  are  hampered  by  the  right 
of  visit  and  search,  and  the  right  of  the  belhgerents  to 
capture  blockade-runners  and  contraband  of  war. 

§  298.  Since  neutrahty  is  an  attitude  during  war,  Neu- 
the   question   arises   as   to   the   necessary   attitude   of  Attitude^ 
foreign  States  towards  civil  war.     As  civil  war  becomes  ^r^'^^r 

<=>  .  .  War(Neu- 

real  war  through  recognition  ^  of  the  insurgents  as  a  tmUty  in 
belhgerent  Power,  a  distinction  must  be  made  between  wlr). 
cases  where  recognition  has  taken  place  and  those  where 
it  has  not.  There  is  no  doubt  that  a  foreign  State 
commits  an  international  delinquency  by  assisting  in- 
surgents in  spite  of  being  at  peace  with  the  legitimate 
Govenmient.  But  matters  are  different  after  recog- 
nition. The  insurgents  are  then  a  belhgerent  Power, 
and  the  civil  war  is  then  real  war.  Foreign  States  can 
either  become  a  party  to  the  war  or  remain  neutral, 
and  in  the  latter  case  all  the  duties  and  rights  of  neu- 
trahty devolve  upon  them.  Since,  however,  recogni- 
tion may  be  granted  by  foreign  States  independently 
of  the  attitude  of  the  legitimate  Government,  and  since 
recognition  granted  by  the  legitimate  Government  is 
not  binding  upon  foreign  Governments,  it  may  happen 
that  insurgents  are  granted  recognition  by  the  legiti- 
mate Government  while  foreign  States  refuse  it,  and 
vice  versa. "^  In  the  first  case,  the  rights  and  duties  of 
neutrahty  devolve  upon  foreign  States  as  far  as  the 
legitimate  Government  is  concerned.  Its  men-of-war 
may  visit  and  search  their  merchantmen  for  contraband  ; 

^  See  above,    §§   59   and  76,  and        Droit  des  Gens  (1903),  pp.  414-447. 
Rougier,    Les    Ghierres    civilet   et   le  ^  See  above,  §  59. 


406  ON  NEUTRALITY  IN  GENERAL 

a  blockade  declared  by  it  is  binding  upon  them,  and 
the  hke.  But  no  rights  and  duties  of  neutrality  devolve 
upon  foreign  States  as  regards  the  insurgents.  A 
blockade  declared  by  them  is  not  binding,  and  their 
men-of-war  may  not  visit  and  search  merchantmen  for 
contraband.  On  the  other  hand,  if  insurgents  are 
recognised  by  a  foreign  State  but  not  by  the  legitimate 
Government,  that  foreign  State  has  all  the  rights  and 
duties  of  neutrality  so  far  as  the  insurgents  are  con- 
cerned, but  not  so  far  as  the  legitimate  Government  is 
concerned.^  In  practice,  however,  recognition  of  in- 
surgents by  foreign  States  will,  if  really  justified,  always 
cause  the  legitimate  Government  to  grant  recognition 
also. 
Neu-  §  299.  Although  third  States  have  no  duty  to  remain 

to\e^  neutral  when  war  breaks  out,'-^  and  may  take  up  the 
nisei  b  cause  of  ouc  of  the  belligerents,  they  have  a  right  ^ 
the  Bel-  to  demand  that  neither  belhgerent  should  force  them 
into  war.  A  belligerent  who,  at  the  outbreak  of  war, 
refuses  to  recognise  a  third  State  as  a  neutral,  does  not 
indeed  violate  neutrality,  because  neutrality  does  not 
come  into  existence  in  fact  and  in  law  until  both  belh- 
gerents  have  acquiesced  in  the  attitude  of  impartiahty 
taken  up  by  third  States.  For  neutrality  to  come  into 
being  it  is  not  sufficient  that  a  third  State  should  take 
up  an  attitude  of  impartiahty ;  it  is  also  necessary  that 
both  belhgerents  should  recognise  this  attitude  by  ac- 
quiescing in  it,  and  not  forcing  the  would-be  neutral 

*  See  the  nine  mles  regarding  the  for  contraband,  is  controversial ;  see 
position  of  foreign  States  in  case  of  Annuaire,  xviii.  pp.  213-216. 
an  insurrection,  adopted  by  the  In-  2  ggg  above    §  293. 
stitute    of     International    Law     at  >  .         • 
its   meeting   at   Neuchatel   in    1900  '  The  doctrine  propounded  by  me 
{Annuaire,     xviii.     p.     227).      The  in  the  previous  editions  of  this  work, 
question  whether,  if  foreign  States  and    also    by    other    writers,    that 
refuse    recognition     to     insurgents,  third     States     have     no     right     to 
although  the  legitimate  Government  demand    to   be    neutral,    cannot   be 
has  granted  it,  the  legitimate  Govern-  upheld  in  face  of  the  modern  develop- 
ment has  a  right  of  visit  and  search  ment  of  the  institution  of  neutrality. 


ligerents. 


CHARACTERISTICS   OF  NEUTRALITY  407 

to  take  part  in  the  war.^  But  the  Law  of  Nations  in 
its  present  development  objects  to  a  would-be  neutral 
State  being  forced  into  war,  and  a  belligerent  who 
refuses  to  recognise  it  as  neutral  violates  International 
Law,  although  not  neutrahty. 

But  though  the  acquiescence  of  belhgerents  in  the 
attitude  of  impartiahty  taken  up  by  third  States  is 
necessary  to  bring  neutrahty  into  existence,  this  does 
not  mean,  as  has  been  maintained,^  that  neutrality 
is  based  on  a  contract  concluded  either  expressis  verbis, 
or  by  unmistakable  actions,  between  both  belhgerents 
and  third  States,  with  the  consequence  that  a  third 
State  might  at  the  outbreak  of  war  take  up  the  posi- 
tion of  being  neither  neutral  nor  a  party  to  the  war, 
and  thereby  reserve  for  itseK  freedom  of  action  for  the 
future.  Since  the  normal  relation  between  the  members 
of  the  Family  of  Nations  is  peace,  when  war  breaks 
out  between  some  of  the  members,  the  others  become 
neutrals  ifso  facto  by  taking  up  an  attitude  of  impar- 
tiahty and  by  not  being  treated  by  the  belligerents  as 
parties  to  the  war.  It  is  not  a  contract  that  calls 
neutrahty  into  existence ;  it  is  rather  the  legal  conse- 
quence of  a  certain  attitude  on  the  part  of  third  States 
on  the  one  hand,  and  the  belhgerents  on  the  other, 
taken  up  at  the  outbreak  of  war. 

Once  third  States  have  taken  up  an  attitude  of 
impartiahty  and  the  belhgerents  have  recognised  it, 
neutrahty  exists  in  fact  and  in  law,  and  belhgerents 
as  well  as  neutrals  violate  neutrahty  if  they  commit 
any  act  incompatible  with  it.^  Belhgerents,  therefore, 
violate  it  if  at  any  time  afterwards  they  declare  war 
upon  a  neutral  State  just  because  it  does  not  serve  their 

^  History  records  several  cases  in  *  See  Heilborn,  System,  pp.   347, 

which  States  which  intended  to  be  350. 
neutral   were   compelled   by  one  or 

both   belligerents  to  throw  in  their  ^  See   above,    §   293,    and    below, 

lot  with  one  or  the  other.  §  312. 


408  ON  NEUTRALITY  IN  GENERAL 

purpose  any  longer  to  acquiesce  in  its  neutrality.  Like- 
wise, a  neutral  violates  neutrality  if  at  any  time  after- 
wards he  declares  war  upon  a  belligerent  just  because 
it  does  not  suit  his  purpose  any  longer  to  remain  neutral. 
Yet,  although  in  such  cases  a  declaration  of  war  is 
^pso  facto  a  violation  of  neutrality,  neutrahty  is  never- 
theless thereby  brought  to  an  end,  and  thenceforth  the 
former  neutral  is  a  belhgerent  with  all  the  rights 
granted  to  him  and  all  the  duties  imposed  upon  him 
by  International  Law.^ 

Ill 

DIFFERENT  KINDS   OF  NEUTRALITY 

Vattel,  iii.  §§  101,  105,  107,  110— Westlake,  ii.  pp.  206-207— Phillimore,  iii. 
§§  138-139— Halleck,  ii.  p.  142— Taylor,  §  618— Wheaton,  §§  413-425— 
Bluntschli,  §§  745-748— Geffcken  in  Holtzendorff,  iv.  pp.  634-636— 
Ullraann,  §  190— Despagnet,  Nos.  685,  686— Pradier-Fod6r6,  viii.  Nos. 
3225-3231— Rivier,  ii.  pp.  376-379— Calvo,  iv.  §§  2592-2642— Fiore,  iii. 
Nos.  1542-1545— M6rignhac,  iii".  509-512— Fillet,  pp.  277-284— Kleen, 
i.  §§  6-22. 

Perpetual  §  ^^0.  The  Very  first  distinction  to  be  made  between 
N^ji.-  different  kinds  of  neutrahty  is  that  between  perpetual 
neutrahty  and  other  neutrahty.  Perpetual  or  per- 
manent neutrahty  is  the  neutrahty  of  States  which 
are  neutrahsed  by  special  treaties  of  the  members  of 
the  Family  of  Nations,  as  at  the  present  time  is  Switzer- 
land. Apart  from  the  duties  arising  from  their  neu- 
trahsation  which  are  to  be  performed  in  time  of  peace 
as  well  as  in  war,  the  duties  and  rights  of  neutrahty 
are  the  same  for  them  as  for  other  States.  This  apphes 
not  only  to  the  obhgation  not  to  assist  either  belh- 
gerent, but  also  to  the  obhgation  to  prevent  both  from 
using  the  neutral  territory  for  their  mihtary  purposes. 
Thus,  Switzerland  in  1870  and  1871,  during  the  Franco- 

*  The  assertion  that  a  declaration        of  International  Law  is  not  operative, 
of  war  which  is  ipso  facto  a  violation       has  been  refuted  above,  §  61. 


DIFFERENT  KINDS   OF  NEUTRALITY  409 

German  War,  properly  prevented  the  transport  of  troops, 
recruits,  and  war  material  of  either  belhgerent  over  her 
territory,  disarmed  the  French  army  which  had  saved 
itself  by  crossing  the  Swiss  frontier,  and  detained  its 
members  until  the  conclusion  of  peace.^ 

§  301.  The  next  distinction  is  between  general  and  General 
partial  neutrahty  which  derives  from  the  fact  that  a  Partial 
part  of  the  territory  of  a  State  may  be  neutrahsed,^  as  JJ«]>.- 
are,  for  instance,  the  Ionian  Islands  of  Corfu  and  Paxo, 
which  are  part  of  the  territory  of  Greece.     Such  a 
State  has  a  duty  always  to  remain  partially  neutral — 
namely,   as  far  as  its  neutrahsed  part  is  concerned. 
General  neutrahty,  on  the  other  hand,  is  the  neutrahty  of 
States  no  part  of  whose  territory  is  neutrahsed  by  treaty. 

§  302.  A  third  distinction  is  that  between  voluntary  Voiun- 
and  conventional  neutrahty.    Voluoitary  (or  simple  or  co^nven^ 
natural)  is  the  neutrahtv  of  a  State  which  is  not  bound  ^J.^"*^ 

11  •    i''  •  1    •  ^eu- 

by  a  general  or  special  treaty  to  remain  neutral  m  a  traUty. 
certain  war.  Neutrahty  is  in  most  cases  voluntary. 
On  the  other  hand,  the  neutrahty  of  a  State  by  treaty 
bound  to  remain  neutral  in  a  war  is  conventional.  Of 
course,  the  neutrahty  of  neutrahsed  States  is  in  every 
case  conventional ;  States  which  are  not  neutrahsed  can 
also  be  obhged  by  treaty  to  remain  neutral  in  a  particular 
war,  just  as  they  can  by  treaty  of  aUiance  be  obhged 
not  to  remain  neutral,  but  to  take  the  part  of  one  of 
the  beUigerents. 

§  303.  One  speaks  of  an  armed  neutrahty  when  a  Armed 
neutral  State  takes  military  measures  for  the  purpose  traHty. 
of  defending  its  neutrahty  against  possible  or  probable 
attempts  by  either  belhgerent  to  make  use  of  the  neutral 
territory.     Thus,  the  neutrahty  of  Switzerland  during 
the  Franco-German  War  was  an  armed  neutrality.     The 

^  See  below,  §  339.  occupation   of  Corfu   by   the  Allies 

during  the  W^orld  War,  see  Garner, 
*  See   above,    §   72.       As    to   the        ii.  §  464. 


410  ON  NEUTRALITY  IN  GENERAL 

term  '  armed  neutraKty '  is  also  used,  and  in  a  difierent 
sense,  when  neutral  States  take  military  measures 
for  the  purpose  of  defending  the  real  or  pretended 
rights  of  neutrals  against  threatened  infringements  by 
either  belHgerent.  The  First  and  Second  Armed  Neu- 
trahties  ^  of  1780  and  1800  were  armed  neutrahties  in 
the  latter  sense  of  the  term. 
Benevo-  §  304.  Treaties  stipulating  neutrahty  often  provide 
traiity.  for  a  '  beuevolent '  neutrahty  in  a  certain  war.  The 
term  is  likewise  frequently  used  during  diplomatic 
negotiations.  However,  there  is  now  no  distinction 
between  benevolent  neutrahty  and  neutrahty  pure  and 
simple.^  The  idea  dates  from  earher  times,  when  the 
obhgations  imposed  by  neutrahty  were  not  so  stringent, 
and  neutral  States  could  favour  one  of  the  belh- 
gerents  in  many  ways  without  thereby  violating  their 
neutral  attitude.  If  a  State  remained  neutral  in  the 
lax  sense  in  which  neutrahty  was  then  understood, 
but  otherwise  favoured  a  belhgerent,  its  neutrahty  was 
called  benevolent. 
Perfect  §  305.  A  distiuction  of  great  practical  importance 
fied  Neu-  hi  formcr  times  was  that  between  perfect,  or  absolute, 
traiity.  ^^^  qualified,  or  imperfect,  neutrahty.  The  neutrahty 
of  a  State  was  quahfied  if  it  remained  neutral  on  the 
whole,  but  actively  or  passively,  directly  or  indirectly, 
gave  some  kind  of  assistance  to  one  of  the  belhgerents  in 
consequence  of  an  obhgation  entered  into  by  a  treaty 
previous  to  the  war,  and  not  for  that  particular  war 
exclusively.  On  the  other  hand,  neutrahty  was  termed 
perfect  if  a  neutral  State  neither  actively  nor  passively, 
neither  directly  nor  indirectly,  favoured  either  belh- 
gerent. There  is  no  doubt  that,  in  the  eighteenth 
century,  when  it  was  recognised  that  a  State  could  be 
considered  neutral,  although  it  was  by  a  previous  treaty 

1  See  above, '■§§  289,  290.  during  part  of  the  World  War,  see 

*  As  to  the  neutrality  of  Greece       below,  ip.;435. 


DIFFERENT  KINDS   OF  NEUTRALITY  411 

bound  to  render  more  or  less  limited  assistance  to  one 
of  the  belligerents,  tliis  distinction  between  neutrality 
perfect  and  qualified  was  justified.^  But,  during  the 
second  half  of  the  nineteenth  century,  it  became  contro- 
versial whether  so-called  quahfied  neutrality  was  neu- 
trality at  all,  or  whether  a  State,  which,  in  fulfilment  of 
a  treaty  obligation,  rendered  some  assistance  to  one  of 
the  belligerents,  violated  its  neutrahty.  The  majority 
of  modern  writers  ^  maintained,  correctly  I  think,  that 
a  State  was  either  neutral  or  not,  and  that  it  violated 
its  neutrality  if  it  rendered  any  assistance  whatever  to  a 
belligerent  from  any  motive  whatever.  In  this  case, 
a  State  which  had  entered  into  such  obhgations  as  those 
just  mentioned  would  in  time  of  war  frequently  have 
conflicting  duties  ;  in  fulfilhng  its  treaty  obhgations, 
it  would  frequently  be  obhged  to  violate  its  duty  of 
neutrahty,  and  vice  versa.  Several  writers,^  on  the  other 
hand,  maintained  that  such  a  fulfilment  of  treaty  obh- 
gations would  not  constitute  a  violation  of  neutrahty. 
All  doubt  in  the  matter  ought  now  to  have  been  removed, 
since  Article  2  of  Hague  Convention  v.  categorically 
enacts  that  '  belhgerents  are  forbidden  to  move  across 
the  territory  of  a  neutral  Power  troops  or  convoys 
either  of  munitions  of  war  or  of  supphes."  The  prin- 
ciple at  the  back  of  this  enactment  no  doubt  is  that  a 
quahfied  neutrahty  has  no  longer  any  raison  d'etre,  and 
that  neutrahty  must  in  every  case  be  perfect.* 


^  See   Nys  in  R.I.,  2nd  Ser.   xv.  ventions   previous    to    the    war    as 

(1913),  pp.  173-181.  violations  of  neutrality. 

-  See,  for  instance,  UUmann,  §  190;  ,„       i--^  T-r«-^       oi<^ 

Despagnet,  No.  686;  Rivier,  ii.   p.  "  ^"'' ^"' ^"?.^''"^?^f  ^'"'4  ^i,V 

378;   Calvo,  iv.    §2594;    Taylor,  §  ^J^^^T'  r??'' '.  ^^^''^^^'i^^ 

618  ;  Fiore,  iii.  No.  1541  ;  Kleen,  i!  427  =  Bluntschh,  §  746  ;  Halleck,  ii. 

§  21  ;   Hall,  §  215  (see  also  Hall,  §   .    P-  ^^'^■ 

219,  coaceriiing  passage  of  troops).  *  See  above,  §  77,  where  it  has 
Phillimore,  iii.  §  138,  goes  with  the  been  pointed  out  that  a  neutral  who 
majority  of  publicists,  but  in  §  139  takes  up  an  attitude  of  qualified 
he  thinks  that  it  would  be  too  rigid  neutrality  may  nowadays  be  con- 
to  consider  acts  of  '  minor '  par-  sidered  as  an  accessory  belligerent 
tiality  which  are  the.Tesult  of  con-  party  to  the  war. 


412  ON  NEUTRALITY  IN  GENERAL 

Some  §  306.  For  the  purpose  of  illustration,  the  following 

Examples  iustauces  of  qualified  neutrahty  may  be  mentioned  : — 

fied^Neu-       ("'-)  "^^  ^  Treaty  of  Amity  and  Commerce  concluded 

traUty.     in  1778  between  the  United  States  of  America  and 

France,  the  United  States  granted  to  French  privateers 

and  their  prizes  the  right  of  admission  to  American 

ports   during  war,  and   undertook  not   to  admit   the 

privateers  of  the  enemies  of  France.     When  in  1793, 

during  war    between  England    and  France,   England 

complained  of  the  admission  of  French  privateers  to 

American  ports,  the  United  States  met  the  complaint 

by  advancing  their  treaty  obhgations.^ 

(2)  Denmark  had  by  several  treaties,  especially  by  a 
treaty  of  1781,  undertaken  to  furnish  Russia  with  a  cer- 
tain number  of  men-of-war  and  troops.  In  1788,  during 
war  between  Russia  and  Sweden,  Denmark  fulfilled  her 
obhgations  towards  Russia,  and  nevertheless  declared 
herself  neutral ;  although  Sweden  protested  against  the 
possibiHty  of  such  quaHfied  neutrahty,  she  acquiesced, 
and  did  not  consider  herseK  at  war  with  Denmark.^ 

(3)  In  1848,  dming  war  between  Germany  and 
Denmark,  Great  Britain,  fulfilhng  a  treaty  obligation 
towards  Denmark,  prohibited  the  exportation  of  arms 
to  Germany,  but  permitted  exportation  to  Denmark.^ 

(4)  In  1900,  during  the  South  African  War,  Portugal, 
to  comply  with  a  treaty  obHgation  *  towards  Great 
Britain  regarding  the  passage  of  British  troops  through 
Portuguese  territory  in  South  Africa,  allowed  the 
passage  of  an  English  force  which  had  landed  at  Beira  ^ 
and  was  destined  for  Rhodesia. 

(5)  In   1915,   during   the   World   War,    British   and 

^  See  Wheaton,  §  425,  and  Philli-  ing     the     delimitation    of     spheres 

more,  ill.  §  139.  of    influence    in     Africa.     Martens, 

^  See  Phillimore,  iii.  §  140.  N.R.G.,  2nd  Ser.  xviii.  p.  185. 

'  See  Geffcken  in  Holtzendorff,  iv.  *  See  below,  §  323  ;   Baty,  Inter- 

p.  610,  and  Rivier,  ii.  p.  379.  national  Law  in  South  ^yWca  (1900), 

*  Article  1 1  of  the  treatj'  between  p.  75  ;  and  The  Times  History  of  the 

Great  Britain  and  Portugal  concern-  War  in  South  Africa,  iv.  p.  366. 


COMMENCEMENT   AND   END   OF  NEUTRALITY        413 

French  troops  were  landed  at  Salonika,  which  was 
part  of  the  territory  of  Greece,  then  neutral,  in  order 
to  aid  Serbia,  which  was  also  an  ally  of  Greece.  Greece 
protested,  but  did  not  oppose  the  landing.^ 

IV 

COMMENCEMENT   AND   END   OF  NEUTRALITY 

Hall,  §  207— Westlake,  ii.  pp.  208-210— Philliraore,  i.  §§  392-392',  iii.  §§ 
146-149— Taylor,  §§  GlO-till— Wheaton,  §i5  437-439,  and  Dana's  note 
215— Heffter,  §  145— Bonfils,  Nos.  1445-1446— Despagnet,  No.  689— 
Pradier-Fod^r^,  viii.  Nos.  3234-3237— Rivier,  ii.  pp.  379-381— Martens, 
ii.  §  138— Kleen,  i.  §§  5,  36-42. 

§  307.  Since  neutrahty  is  an  attitude  of  impartiahty  Neutrai- 
dehberately  taken  up  by  a  State  and  acquiesced  in  by  J^gni? 
the  beUigerents,  it  cannot  begin  before  the  outbreak  of  ^^;ith 
war  becomes  known.     It  is  only  then  that  third  States  ledge  of 
can  make  up  their  minds  whether  or  not  they  intend  to  *^®  ^^^*^" 
remain  neutral.    As  soon  as  they  determine  to  adopt  an 
attitude  of  impartiahty,  and  the  beUigerents  acquiesce 
in  their  choice,  the  duties  deriving  from  neutrahty  are 
incumbent  upon  them.     It  has  long  been  the  usual 
practice  of  beUigerents  to  notify  the  outbreak  of  war 
to  third  States  so  as  to  enable  them  to  make  their  deci- 
sion, but  formerly  this  was  not  in  strict  law  necessary. 
Knowledge  of  the  outbreak  of  war,  however  obtained, 
gave  a  third  State  an  opportunity  of  coming  to  a  deci- 
sion, and,  if  it  remained  neutral,  its  neutrahty  dated 
from  the  time  when  it  first  knew  of  the  outbreak  of  war. 
But  it  is  apparent  that  an  immediate  notification  of  war 
by  belhgerents  is  of  great  importance,  as  excluding  all 
doubt    and   controversy   regarding  knowledge   of    the 
outbreak  of  war.     For  it  must  always  be  remembered 
that  a  neutral  State  may  in  no  way  be  made  respon- 
sible for  acts  of  its  own  or  of  its  subjects  which  have 
been  performed  before  it  knew  of  the  war,  although  the 

*  Garner,  ii.  §  466. 


414         ON  NEUTRALITY  IN  GENERAL 

outbreak  of  war  might  have  been  expected.  For  this 
reason  Article  2  of  Hague  Convention  iii.  enacted  that 
belhgerents  must  without  delay  send  a  notification  of 
the  outbreak  of  war  ^  to  neutral  Powers,  and  that  the 
condition  of  war  should  not  take  effect  in  regard  to 
neutral  Powers  until  after  receipt  of  a  notification, 
unless  it  was  estabhshed  beyond  doubt  that  they  were 
in  fact  aware  of  its  outbreak.^ 
Com-  §  308.  As  civil  war  becomes  real  war  through  recog- 

menrof    i^i^ion  of  the  insurgents  as  a  belligerent  Power,  neu- 
Neutrai-   trahty  during  a  civil  war  besdns  for  every  foreign  State 
War.        from  the  moment  recogmtion  is  granted.** 
Establish-     §  309.  NcutraHty  being  an  attitude  of  States  creating 
Neutral-   ^ights  and  duties,  active  measures  on  the  part  of  a 
ityby      neutral  state  are  required  for  the  purpose  of  prevent- 
tions"!       ing  its  officials  and  subjects  from  committing  acts  in- 
compatible with  its  duty  of  impartiahty.     Now,  the 
manifesto  by  which  a  neutral  State  orders  its  organs 
and  subjects  to  comply  with  the  attitude  of  impartiahty 
adopted  by  itself  is  called  a  '  declaration  of  neutrahty  ' 
in  the  special  sense  of  the  term.     Such  a  declaration 
must  not,  however,   be  confounded  with  manifestoes 
by  the  belligerents  proclaiming  to  neutrals  the  rights 
and  duties  devolving  upon  them  through  neutrahty, 
or  with  the  assertions  made  by  neutrals  to  belhgerents 
or  urhi  et  orbi  that  they  will  remain  neutral,  although 
these  manifestoes  and  assertions  are  often  also  called 
declarations  of  neutrahty.* 
Municipal     §  310.  International  Law  leaves  it  to  the  discretion 
Neutral-     £  Q2i.G\i  State  to  take  the  measures  necessarv  to  ensure 

ity  Laws.  ...  .         .  " 

neutrality.     Since  in  constitutional  States  the  powers 

^  It  may  even  be  made  by  tele-  legitimate    Government    has    been 

graph.  stated  above,   §  298,   where  an  ex- 

*  See  above   ^^  94   95  planation  is  also  given  of  the  con- 

'           '       ■  sequences    of    recognition    granted, 

^  That  recognition  may  be  granted  either   by  foreign   States   alone,  or 

or  refused  by  foreign  States  inde-  by  the  legitimate  Government  alone, 

pendently   of    the   attitude  of    the  *  See  above,  §  293. 


COMMENCEMENT   AND   END   OF   NEUTRALITY        415 

of  Governments  are  frequently  so  limited  by  Municipal 
Law  that  they  may  not  take  adequate  measures  without 
the  consent  of  their  parhaments,  and  since,  so  far  as 
International  Law  is  concerned,  it  is  no  excuse  for  a 
Government  to  plead  that  its  Municipal  Law  prevents 
it  from  taking  adequate  measures,  several  States  have 
once  for  all  enacted  so-called  Neutrahty  Laws,  which 
prescribe  the  attitude  to  be  taken  up  by  their  officials 
and  subjects  in  case  they  remain  neutral  in  a  war. 
These  Neutrality  Laws  are  latent  in  time  of  peace  ;  but 
their  provisions  become  operative  12)80  facto  by  the 
respective  States  making  a  declaration  of  neutrahty 
to  their  officials  and  subjects. 

§  31L  The   United   States   of   America   enacted  ^   a  British 
Neutrahty   Law   on   April   20,    1818;     Great   Britain  EniT 
followed  her  example  in  1819  by  passing  a  Foreign  ™^°*^  ^<'<^- 
Enhstment  Act,^  which  was  in  force  till  1870.     As 
this  Act  did  not  give  adequate  powers  to  the  Govern- 
ment, Parhament  passed  on  August  9,   1870,  a  new 
Foreign    Enlistment    Act,^    which    is    still    in    force. 
This   Act,    in    the    event   of    British   neutrahty,    pro- 
hibits :     (1)    the  enhstment   by   a   British   subject  in 
the  mihtary  or  naval  service  of  either  beUigerent,  and 
similar    acts    (§§    4-7) ;    (2)    the    building,    equipping,* 

^  Printed  in  Phillimore,  i.  pp.  667-  ture,  provisions,  arms,  munitions,  or 

672.     On  the  resohition  of  Congress  stores,  or  any  other  thing  which  is 

of  March  4,  1915,  see ^4./.,  ix.  (1915),  used  in  or  about  a  ship  for  the  pur- 

pp.  490-493.      See  also  the  Act  '  to  pose  of  fitting  or  adapting  her  for 

punish  Acts  of  Interference  with  the  the  sea    or   for   naval  service.'      It 

Foreign  Relations,   the    Neutrality,  is,  therefore,  not  lawful  for  British 

and  the  Foreign  Commerce  of   the  ships,  in  case  Great  Britain  is  neu- 

United  States,  etc.,' passed  on  June  tral,    to   supply   a   belligerent    fleet 

15,   1917  {A.J.,    xi.   (1917),  Supple-  direct  with  coal.     Thus  during  the 

ment,  pp.  178-198).  Russo-Japanese  War,  while  German 

■  59  Geo.  iii.  c.  69.  steamers  laden   with    coal   followed 

'  33  &  34  Vict.  c.  90.     See  Sibley  the  Russian  fleet  on  her  journey  to 

in  the  Law  Magazine  and  Review,  the    Far    East,    British   shipowners 

xxix.   (1904),  pp.  454-467,  and  xxx.  were  prevented  from  doing  the  same 

(1905),  pp.  37-53.  by  the  Foreign  Enlistment  Act.     It 

*  According   to    §   30,    the   inter-  was  under  this  Act  that  in  1904  the 

pretation  clause  of  the  Act,  '  equip-  British     Government     ordered    the 

ping '    includes    '  the    furnishing    a  detention   of    the    German   steamer 

ship  with  any  tackle,  apparel,  furni-  Captain     W.     Menzel,     which    had 


416         ON  NEUTRALITY  IN  GENERAL 

and  despatching  ^  of  vessels  for  employment  in  the 
mihtary  or  naval  service  of  either  belKgerent  (§§  8-9) ; 

(3)  the  increase  by  any  individual  Hving  on  British 
territory  of  the  armament  of  a  man-of-war  of  either 
beUigerent  being  at  the  time  in  a  British  port  (§  10)  ; 

(4)  the  preparing  or  fitting  out  of  a  naval  or  military 
expedition  against  a  friendly  State  (§  11). 

The  British  Foreign  Enlistment  Act  goes  beyond  the 
requirements  of  International  Law,  in  so  far  as  it  tries 
to  prohibit  and  penahses  a  number  of  acts  which, 
according  to  the  present  rules  of  International  Law, 
a  neutral  State  is  not  required  to  prohibit  and  penalise. 
Thus,  for  instance,  a  neutral  State  need  not  prohibit 
its  private  subjects  from  enhsting  in  the  service  of  a 
belhgerent ;  from  supplying  coal,  provisions,  arms, 
and  ammunition  direct  to  a  beUigerent  fleet,  provided 
that  the  fleet  is  not  within,  or  just  outside,  the  terri- 
torial waters  of  that  neutral  ;  or  from  seUing  ships  to 
a  beUigerent,  although  it  is  knowm  that  they  wiU  be 
converted  into  cruisers,  or  used  as  transport  ships. 
For  Article  7  of  Convention  v.  and  Article  7  of  Conven- 
tion xni.  categorically  enact  that '  a  neutral  Power  is  not 
bound  to  prevent  the  export  or  transit,  on  behaU  of  either 
belhgerent,  of  arms,  munitions  of  war,  or,  in  general, 
of  anything  which  could  be  of  use  to  an  army  or  fleet.'' 

taken    on    board     Welsh     coal     at  The  required  additions  were  finished 

Cardiff  for  the  purpose  of  carrying  on   October   3.     On    October   6  the 

it  to  the  Russian  fleet   en  route  to  vessel  left  Messrs.  Yarrow's  yard  and 

the  Far  East.     See  below,  §  350.  was  navigated  by  a  Captain  Ryder, 

via  Hamburg,  to  the  Russian  port  of 

^  An    interesting    ease    occurred  Libau,    there   to   be   altered  into  a 

diuing    the    Russo-Japanese    War.  torpedo    boat.       That    §    8    of    the 

Messrs.   Yarrow  and  Co.,  the  ship-  Foreign  Enlistment  Act  applied  to 

builders,    possessed    a    partly    com-  this   case   there   is   no  doubt.     But 

pleted  vessel,  the  Caroline,  capable  there  is  also  no  doubt  that  it  was 

of  being  finally  fitted  up  either  as  this  Act,  and  not  the  rules  of  Inter- 

a  yacht  or  as  a  torpedo  boat.     In  national   Law,   which    required   the 

September   1904  a  Mr.    Sinnet  and  prosecution   of   Messrs.    Sinnet  and 

the  Hon.  James  Burke  Roche  called  Roche  by  the  British  Government, 

at  their  shipbuilding  yard,  bought  For,  in  International  Law,  the  case 

the  Caroline,  and  ordered  her  to  be  M'as  merely  one  of  contraband.     See 

fitted    up    as   a    high-speed    yacht.  below,  §§  321,  334,  397. 


COMMENCEMENT  AND   END   OF  NEUTRALITY       417 

§  312.  Neutrality  ends  with  the  war,  or  through  a  End  of 
hitherto  neutral  State  begimxing  war  against  one  of  the  jty" 
belligerents,  or  through  one  of  the  belhgerents  com- 
mencing war  against  a  hitherto  neutral  State.     But 
two  classes  of  cases  must  be  distinguished. 

There  is,  in  the  fii'st  place,  the  class  of  cases  in  which 
war  breaks  out  between  one  of  the  belhgerents  and  a 
hitherto  neutral  State,  either  (a)  on  account  of  a  dis- 
pute not  connected  with  the  cause  of  the  war  then  in 
progress,  or  {b)  because  the  belligerent  has  violated 
fundamental  rules  of  warfare,  or  (c)  because  either  the 
belhgerent  or  the  neutral  has  committed  a  violation  of 
neutrahty  so  grave  that  the  injured  party  considers  it 
necessary  to  answer  it  by  a  declaration  of  war.  In 
such  and  similar  cases  a  declaration  of  war  does  not 
ipso  facto  constitute  a  violation  of  neutrahty. 

There  is,  secondly,  the  class  of  cases  in  which  war 
breaks  out  between  one  of  the  belligerents  and  a  hitherto 
neutral  State  simply  because  it  does  not  suit  the  belh- 
gerent any  longer  to  recognise  its  impartial  attitude, 
or  because  it  does  not  suit  the  neutral  to  remain  neutral 
any  longer.  For  instance,  a  belhgerent  may  desire  to 
march  troops  through  a  neutral  country,  and  the  neutral 
will  not  permit  this  ;  or  a  neutral  may  desire  to  abandon 
neutrahty  although  it  can  find  no  cause  for  war  in  the 
events  which  have  occurred  since  it  decided  to  remain 
neutral.  In  such  cases  a  declaration  of  war  ipso  facto 
constitutes  a  violation  of  neutrahty  because,  neutrahty 
having  previously  come  into  existence  in  fact  and  in 
law,  a  neutral  ought  not  to  abandon  it  except  for  a 
reason  not  connected  with  the  cause  of  the  war  in 
progress,  nor  ought  a  belhgerent  to  draw  the  neutral 
into  the  war.^ 

^  See  above,  §  299.     The  doctrine  State  to  remain  neutral,  and  that  a 

propoundedbyme  in  the  previous  edi-  neutral  State  has  no  duty  to  remain 

tions  of  this  work  that  a  belligerent  neutral,  cannot  be  upheld  in  face  of 

has  no  duty  to  allow  a  hitherto  neutral  the  modern  development  of  the  iii- 

VOL.   II.  2d 


418  ON  NEUTRALITY  IN   GENERAL 

However  this  may  be,  duties  of  neutrality  exist  only 
so  long  as  a  State  remains  neutral.  They  come  to  an 
end  ipso  facto  by  a  neutral  State  throwing  up  its  neu- 
trahty,  or  by  a  belUgerent  beginning  war  against  a 
hitherto  neutral  State.  Yet  the  ending  of  neutrahty 
must  not  be  confomided  with  mere  violation  of  neu- 
trahty. A  mere  violation  does  not  ipso  facto  bring 
neutrahty  to  an  end.^ 

stitution    of    neutrality.       Once    a  ing  neutrality,   declare  war  in  case 

State  has  made  up  its  mind  to  re-  it   does   not    suit    its    purpose   any 

main    neutral  and    the  belligerents  longer  to  observe  the  duties  deriv- 

have    recognised     such    neutrality,  ing  from  neutrality. 
neither  party  can,   without  violat-  ^  See  below,  §  358. 


CHAPTER  II 

RELATIONS   BETWEEN   BELLIGERENTS  AND 
NEUTRALS 


EIGHTS   AND   DUTIES   DERIVING  FROM  NEUTRALITY 

Vattel,  iii.  §  104— Hall,  §  214— Phillimore,  iii.  §§  136-138— Twiss,  ii.  §  216 
— Heffter,  §  146— Geffcken  in  Holtzendorff,  iv.  pp.  656-657— Gareis,  §  88— 
Liszt,  §  42 — Ullraann,  §  191 — Bonfils,  Nos.  1441-1444 — Despagnet,  Nos. 
684  and  690— Rivier,  ii.  pp.  381-385— Nys,  iii.  pp.  560-G25— Calvo,  iv. 
§§  2491-2493— Fiore,  iii.  Nos.  1501,  1536-1540,  and  Code,  Nos.  1799- 
1801,  1807— Martens,  ii.  §  131— Kleen,  i.  §§  45-46— M6rignhac,  iii".  pp. 
512-516— Pillet,  pp.  273-275. 

§  313.  Neutrality  can  be  carried  out  only  if  neutrals  Conduct 
as  well  as  belligerents  follow  a  certain  line  of  conduct  JJ  Ne°u/^ 
in  their  relations  with  one  another.     It  is  for  this  reason  ^^^}f.  ^^^ 

Beluger- 

that  from  neutrahty  derive  rights  and  duties,  for  beUi-  ents. 
gerents  as  well  as  for  neutrals,  and  that,  consequently, 
neutrahty  can  be  violated  by  both  beUigerents  and 
neutrals.  These  rights  and  duties  are  correlative  : — 
the  duties  of  neutrals  to  the  rights  of  the  belhgerents, 
and  the  duties  of  the  belhgerents  to  the  rights  of  the 
neutrals. 

§  314.  There  are  two  rights  and  two  duties  deriving  what 
from   neutrahty   for   neutrals,    and   Hkewise   two   for  ^^^^ 
belhgerents.  P^^ties  of 

^   ,  .  Weutrals 

Duties  of  neutrals  are,  in  the  first  place,  to  act  toward  and  of 
belhgerents  in  accordance  with  their  attitude  of  impar-  ents^there 
tiahty ;    and,  secondly,  to  acquiesce  in  the  exercise  by  ^'^^'  * 
either  belligerent  of  the  right  to  punish  neutral  merchant- 

419 


420  BELLIGERENTS   AND  NEXJTRALS 

men  for  breach  of  blockade,  carriage  of  contraband, 
and  rendering  unneutral  service  to  the  enemy,  and, 
accordingly,  to  visit,  search,  and  eventually  capture 
them. 

The  duties  of  belligerents  are,  in  the  first  place,  to  act 
towards  neutrals  in  accordance  with  their  attitude  of 
impartiahty  ;  and,  secondly,  not  to  suppress  their  inter- 
course, and  in  particular  their  commerce,  with  the 
enemy.  ^ 

Either  belhgerent  has  a  right  to  demand  impartiahty 
from  neutrals  ;    on  the  other  hand,   neutrals  have  a 
right   to   demand   such   behaviour   from   either   belh- 
gerent   as    is    in   accordance   with    their    attitude   of 
impartiahty.     Neutrals  have  a  right  to  demand  that 
their  intercourse,   and  in  particular  their  commerce, 
with   the    enemy    shall   not    be    suppressed ;    on   the 
other  hand,   either  belligerent  has  a  right  to  punish 
subjects  of  neutrals  for  breach  of  blockade,  carriage 
of  contraband,  and  unneutral  service,  and,  accordingly, 
to  visit,  search,  and  capture  neutral  merchantmen. 
Rights         §  315.  Some  writers  ^  maintain  that  no  rights  derive 
Slftiesof  from   neutrality   for   neutrals,    and,   consequently,   no 
Neutrals  cLutics  for  belUgerents,  because  everything  which  must 

contested  o  '  ./  o 

'  be  left  undone  by  a  belhgerent  regarding  his  relations 
with  a  neutral  must  hkewise  be  left  undone  in  time  of 
peace.  But  this  opinion  has  no  foundation.  It  is 
true  indeed  that  the  majority  of  the  acts  which  belh- 
gerents  must  leave  undone  in  consequence  of  their 
duty  to  respect  neutrahty  must  Hkewise  be  left  undone 
in  time  of  peace  in  consequence  of  the  territorial  supre- 
macy of  every  State.  But  there  are  several  acts  which 
do  not  belong  to  this  class — for  instance,  the  non- 

^  All  writers  on  International  Law  this  way  quite  a  large  catalogue  of 

resolve  the  duty  of  impartiality  in-  duties  and  corresponding   rights  is 

cumbent  upon  neutrals  and  the  duty  produced,  and  the  whole  matter  is 

of   belligerents  to  act  toward  neu-  unnecessarily  complicated, 

trals  in  accordance  with  their  impar-  *  Heffter,    §   149  ;    Gareis,   §   88  ; 

tiality  into  many  distinct  duties.    In  Heilborn,  System,  p.  341. 


RIGHTS,   ETC.,   DERIVING   FROM  NEUTRALITY        421 

appropriation  of  enemy  goods  on  neutral  vessels.  And 
those  acts  which  do  belong  to  this  class  also  fall  at  the 
same  time  under  another  category.  Thus,  a  violation 
of  neutral  territory  by  a  belHgerent  for  mihtary  and 
naval  purposes  of  the  war  is  indeed  an  act  prohibited 
in  time  of  peace,  because  every  State  has  to  respect  the 
territorial  supremacy  of  other  States  ;  but  it  is  at  the 
same  time  a  violation  of  neutrahty,  and  therefore  totally 
different  from  other  violations  of  foreign  territorial 
supremacy.  This  becomes  quite  apparent  when  the 
true  inwardness  of  such  acts  is  regarded.  For  while 
every  State  has  a  right  to  demand  reparation  for  an 
ordinary  violation  of  its  territorial  supremacy,  it  need 
not  take  any  notice  of  it,  and  it  has  no  duty  to  demand 
reparation.  But  in  case  a  violation  of  its  territorial 
supremacy  constitutes  at  the  same  time  a  violation  of 
its  neutrahty,  the  neutral  State  not  only  has  a  right  to 
demand  reparation,  but  has  a  duty  ^  to  do  so.  For,  if  it 
did  not,  it  would  violate  its  duty  of  impartiahty  by 
favouring  one  belhgerent  to  the  detriment  of  the  other.  ^ 
On  the  other  hand,  it  has  been  asserted  ^  that,  apart 
from  conventional  neutrahty,  from  which  treaty  obhga- 
tions  arise,  it  is  incorrect  to  speak  of  duties  deriving 
from  neutrahty,  since  at  any  moment  during  the  war 
neutrals  can  throw  up  neutrality  and  become  parties 
to  the  war.  This  assertion  is  based  on  the  erroneous 
doctrine  "*  that  a  neutral  does  not  violate  neutrahty 
by  abandoning  his  impartial  attitude  for  no  other  reason 
than  that  it  no  longer  serves  his  purpose  to  remain 
neutral.    But  even  if  that  doctrine  were  correct,  it 

*  See,   for  instance,   Article  3  of  If  the  prize  is  not  within  the  juris- 

HagueConvention  XIII.  which  enacts:  diction   of   the    neutral  Power,   the 

'  When  a  ship  has  been  captured  in  captor  Government,  on  the  demand 

the  territorial  waters  of  a  neutral  of   that   Power,    must    liberate   the 

Power,    such    Power    must,    if    the  prize  ^vith  its  officers  and  crew.' 

prize  is  still  within  its  jurisdiction,  »  ggg  below   §  3G0. 

employ  the  means  at  its  disposal  to  sen       • '   8  8« 

release  the  prize  with  its  officers  and  ^^®  Uareis,  S  o«. 

crew,  and  to  intern  the  prize  crew.  *  See  above,  §§  299,  312. 


422  BELLIGERENTS   AND  NEUTRALS 

would  not  follow  from  it  that,  so  long  as  a  State  re- 
mained neutral,  no  duties  derived  from  neutrality. 

For  to  say  that  duties  derive  from  neutrahty  only 
means  that,  so  long  as  neutrals  intend  neutrahty,  and 
so  long  as  belhgerents  intend  to  recognise  that  neu- 
trahty, duties  derive  from  neutrahty  for  both  belh- 
gerents and  neutrals. 
Contents  §  316.  It  has  already  been  stated  above,^  that  im- 
of  Fmpar-  P^rtiahty  excludes  such  assistance  and  succour  to  one 
tiaiity.  of  the  bclhgerents  as  is  detrimental  to  the  other,  and, 
further,  such  injuries  to  one  of  the  belhgerents  as 
benefit  the  other,  and  that  it  includes  active  measures 
on  the  part  of  a  neutral  for  the  purpose  of  preventing 
belhgerents  from  making  use  of  neutral  territories  and 
neutral  resources  for  their  mihtary  and  naval  purposes, 
and  of  preventing  either  of  them  from  interfering  with 
his  legitimate  intercourse  with  the  other.  But  all  this 
does  not  exhaust  the  contents  of  the  duty  of  impar- 
tiahty. 

For,  according  to  the  present  strict  conception  of  neu- 
trahty, the  duty  of  impartiahty  excludes  in  addition  all 
facihties  whatever  for  mihtary  and  naval  operations  of 
the  belhgerents,  even  if  granted  to  both  belhgerents  ahke. 
In  former  times  assistance  was  not  considered  a  viola- 
tion of  neutrahty,  provided  it  was  given  to  both  belh- 
gerents in  the  same  way,  and  States  were  considered 
neutral  although  they  allowed  an  equal  number  of  their 
troops  to  fight  on  the  side  of  each  belhgerent.  To-day 
this  could  no  longer  happen.  From  Hague  Conven- 
tions v.  and  XIII.,  which  deal  with  neutrahty  in  land 
and  sea  warfare  respectively,  it  becomes  quite  apparent 
that  any  facihty  whatever  directly  concerning  mihtary 
or  naval  operations,  even  if  it  consists  only  in  granting 
passage  over  neutral  territory  to  belhgerent  forces,  is 
illegal,  although  granted  to  both  belhgerents  ahke.     The 

1  §  294. 


RIGHTS,   ETC.,   DERIVING   FROM   NEUTRALITY       423 

duly  of  impartiality  to-day  comprises  abstention  from  any 
active  or  passive  co-operation  with  belligerents. 

Secondly,  the  duty  of  impartiality  includes  in  addi- 
tion the  equal  treatment  of  both  belhgerents  regarding 
such  facihties  as  do  not  directly  concern  mihtary  or 
naval  operations,  and  which  may,  therefore,  be  granted 
or  refused  to  belhgerents  according  to  the  discretion 
of  a  neutral.  If  a  neutral  grants  such  facihties  to  one 
belligerent,  he  must  grant  them  to  the  other  in  the 
same  degree.  If  he  refuses  them  to  the  one,  he  must 
hkewise  refuse  them  to  the  other.^  Thus,  since  it 
does  not,  according  to  the  International  Law  of  the 
present  day,  constitute  a  violation  of  neutrality  for  a 
neutral  to  allow  his  subjects  to  supply  either  belHgerent 
with  arms  and  ammunition  in  the  ordinary  way  of  trade,  it 
would  constitute  a  violation  of  neutrahty  to  prohibit  the 
export  of  arms  destined  for  one  of  the  belhgerents  only. 
Thus,  further,  if  a  neutral  allows  men-of-war  of  one  of 
the  belhgerents  to  bring  their  prizes  into  neutral  ports, 
he  must  grant  the  same  facihty  to  the  other  belhgerent. 

§  317.  Although  neutrality  has  already  for  centuries  Duty  of 
been  recognised  as  an  attitude  of  impartiahty,  it  has  auty^con- 
taken  two  hundred  years  for  the  duty  of  impartiahty  tinuousiy 

T     .  •  rni   •  growing 

to  attain  its  present  range  and  intensity.    This  con-  more 
tinuous  development  had  by  no  means  ceased,  but  was  b^forrthe 
slowly  and  gradually  going  on  when  the  World  War  Worid 
broke  out.     During  that  war  the  detailed  rules  con- 
cerning the  relations  between  neutrals  and  belhgerents 
which  result  from  the  duty  of   a  neutral  State  to  be 
impartial  were  put  to  proof,  and  it  wiU  be  necessary 
to  discuss  them  at  greater  length.^ 

*  See  Articles  7,  8,  9,  11,  13,  14  trals  and  Military  Preparations  (§§ 
of  Hague  Convention  v.,  and  Articles  329-335);  Neutral  Asylum  to  Land 
7,  9,  11,  17,  19,  21,  23  of  Hague  Forces,  War  Material  and  Airmen  (^§ 
Convention  XIII.  336-341a)  ;  Neutral  Asjdum  to  Naval 

Forces  (g§  342-348a) ;    Supplies  and 

*  See  below  :  Neutrals  and  Mili-  Loans  to  Belligerents  (§§  349-352) ; 
tary  Operations  (§§  320-328a) ;  Neu-       Services  to  Belligerents  (§§  353-356). 


424  BELLIGERENTS   AND   NEUTRALS 

Contents  §  318.  On  the  other  hand,  the  contents  of  the  duty 

of  Beiu-  of  belHgerents  to  treat  neutrals  in  accordance  with  their 

STrel^t  iinpartiaHty  are  so  manifest  that  elaborate  treatment 

Neutrals  is  uimeccssary.    This  duty  excludes,  in  the  first  place, 

111  &CCOT*(i -  •  •  • 

ance  with  any  Violation  of  neutral  territory  for  mihtary  or  naval 
partia^iit  P^i^poses  of  the  wax/  and  any  interference  with  the 
legitimate  intercourse  of  neutrals  with  the  enemy  ;  and, 
secondly,  the  appropriation  of  neutral  goods,  contra- 
band excepted,  on  enemy  vessels.'^  On  the  other  hand, 
it  includes,  in  the  first  place,  due  treatment  of  neutral 
diplomatic  envoys  accredited  to  the  enemy  and  fomid 
on  occupied  enemy  territory  ;  and,  secondly,  due  treat- 
ment of  neutral  subjects  and  neutral  property  on  enemy 
territory.  A  belhgerent  who  conquers  enemy  territory 
must  at  least  grant  to  neutral  envoys  accredited  to 
the  enemy  the  right  to  quit  the  occupied  territory 
unmolested.^  He  must  hkewise  abstain  from  treating 
neutral  subjects  and  property  estabhshed  on  enemy 
territory  more  harshly  than  the  laws  of  war  allow  ;  for, 
although  neutral  subjects  and  property,  by  being 
estabhshed  on  enemj^  territory,  have  acquired  enemy 
character,  nevertheless  they  have  not  lost  the  protec- 
tion of  their  neutral  home  State.  ^  He  must,  lastly, 
pay  full  damages  in  case  he  exercises  his  right  of  angary  ^ 
against  neutral  property  in  course  of  transit  through 
enemy  territory. 

§  319.  The  duty  of  each  beUigerent  not  to  suppress 
intercourse  between  neutrals  and  the  enemy  requires 
no  detailed  discussion  either.  It  is  a  duty  which  is  in 
accordance  wdth  the  development  of  the  institution  of 

^  See  Articles  1-4  of  Hague  Con-  enemy   territory  is   not   settled    as 

vention  v.,  and  Articles  1-5  of  Hague  regards   details.       But    there   is  no 

Convention  xiii.  doubt  that  a  certain  consideration  is 

^  This  is  stipulated  by  the  Declara-  f '^^^^  ^^'^'^'  ^nd  that  they  must  at 

tion  of  Paris  of  1856.  ^f^'^  ^^  g^^°*f  ^.  ^\\^i^^  ^°  ^^P*^*- 

bee  above,  vol.  i.  s  399. 

'  The  position  of  foreign  envoys  *  See  above,  §  88. 

found  by  a  belligerent  on  occupied  ^  See  below,  §§  364-367. 


RIGHTS,   ETC.,   DERIVING   FROM   NEUTRALITY         425 

neutrality.     It  is  of  special  importance  with  regard  to  Contents 
commerce   of   subjects   of    neutrals   with   belligerents,  "ot  to ^ 
since  formerly  attempts  were  frequently  made  to  inter-  J^^pp^"".^^* 
cept  all  neutral  trade  with  the  enemy  although  no  course 
effective    blockade    had    been    estabhshed.     A    conse-  Neutrals 
quence  of  the  now  recognised  freedom  of  neutral  com-  ^^^^f 
merce  with  either  belhgerent  is,  in  the  first  place,  the 
i-ule  enacted  by  the  Declaration  of  Paris  of  1856,  that 
enemy  goods,  with   the  exception  of  contraband,  on 
neutral  vessels  on  the  open  sea  or  in  enemy  territorial 
waters  may  not  be  appropriated  by  a  belhgerent,^  and, 
secondly,  the  rule,  enacted  by  Article  1  of  Hague  Con- 
vention XI.,  that  the  postal  correspondence  of  neutrals 
or  belhgerents,  except  correspondence  destined  for,  or 
proceeding  from,  a  blockaded  port,  which  may  be  found 
on  a  neutral  or  enemy  vessel  at  sea,  is  inviolable.^    But 
the  recognised  freedom  of  neutral  commerce  necessi- 
tates, on  the  other  hand,  certain  measures  on  the  part 
of  belligerents.     It  would  be  unreasonable  to  impose 
on  a  belhgerent  a  duty  not  to  prevent  the  subjects  of 
neutrals  from  breaking  a  blockade,  from  carrying  con- 
traband, and,  lastly,  from  rendering  unneutral  service 
to  the  enemy.     International  Law  gives,  therefore,  a 
right  to  either  belhgerent  to  prevent  neutral  merchant- 
men, so  far  as  is  in  his  power,  from  doing  such  things, 
and,  accordingly,  to  visit,   search,  capture,   and  con- 
fiscate them.^ 

But  the  duty  of  a  belligerent  not  to  suppress  inter- 
com'se,  and  especially  legitimate  commerce,  between 
neutrals  and  the  enemy  has  an  exception  in  the  case 

^  That  not  only  goods  owned  by  §  411. 

enemy  individuals,   but   also  goods  *  That  a  subject  of  a  neutral  State 

owned  by  the  enemy  State,  ought  to  who  tries  to  break  a  blockade,  or 

be  exempt  from  appropriation  when  carries  contraband  to  the  enemy,  or 

on  neutral  vessels,  has  already  been  renders  the  enemy  unneutral  service, 

pointed  out,  although  the  practice  of  violates    injunctions    of    the    belli - 

Italy  is  to  the  contrary  ;    see  above,  gerents,  but  not  International  Law, 

§  177  n.  has  been  shown  above  in  §  296  ;  see 

*  See   above,   §   191,   and  below,  also  below,  §§  383,  398. 


426  BELLIGERENTS   AND  NEUTRALS 

of  reprisals.  It  has  been  pointed  out  above  ^  that 
neutrals  must  prevent  each  belUgerent  from  interfering 
with  their  legitimate  intercourse  with  the  other  belh- 
gerent,  because  a  belhgerent  cannot  be  expected  passively 
to  suSer  vital  damage  to  himself  in  consequence  of  the 
violation  by  his  enemy  of  a  rule  which,  although  it 
operates  directly  in  favour  of  neutrals,  indirectly 
operates  in  his  favour  also.  If,  therefore,  the  enemy 
resorts  to  measures  which  suppress,  or  aim  at  suppress- 
ing, his  intercourse  with  neutrals,  and  they  do  not 
prevent  these  measures  from  being  carried  out,  he  is 
justified  in  resorting  to  reprisals,  and  in  turn  preventing 
intercourse  between  his  enemy  and  neutrals,  provided 
that  these  reprisals  do  not  extend  further  than  to  pre- 
vent imports  to,  and  exports  from,  the  enemy  country. 
Thus  when  in  February  1915,  during  the  World  War, 
Germany,  as  a  measure  of  reprisals  against  the  Alhes, 
mainly  because  they  would  not  carry  out  the  rules  of 
the  unratified  Declaration  of  London,^  decreed  all  the 
waters  surrounding  the  British  Isles  to  be  a  war  zone, 
in  which  every  enemy  merchant  vessel  would  be 
destroyed  by  submarines  without  it  being  always 
possible  to  save  crew  and  passengers,  and.  neutral  ships 
might  be  exposed  to  danger,  Great  Britain  by  Order  in 
Council  of  March  11,  1915,^  and  France  by  decree  of 
March  13,  1915,*  retahated  by  ordering  their  fleets  to 
prohibit  all  exports  from,  and  imports  to,  Germany, 
and  by  an  Order  in  Council  of  January  10,  1917,  the 
order  of  March  11,  1915,  was  extended  to  all  enemy 
countries.^  The  United  States  of  America  protested  ^ 
against  these  British  and  French  reprisals,  asserting 
that  the  measures  resorted  to  were  a  violation  of  neutral 


*  §  294  ;  see  also  g§  316,  318.  '  London    Gazette,    January     12, 
2  See  above,  §  292.  1917. 

^  London  Gazette,  March  15,  1915.  ®  Pari.    Papers,    Misc.,    No.    14 

*  Dalloz,   Jurisprudence   Generate  (1916),  Cd.  8233. 
(1915),  pp.  78-79. 


RIGHTS,    ETC.,   DERIVING   FROM  NEUTRALITY        427 

rights.  Now  this  was  certainly  the  case  ;  but  neutrals 
could  not  complain,  because  they  did  not  prevent 
Germany  from  carrying  out  her  nefarious  submarine 
practice,  which  attempted  to  cut  oH  entirely  all  com- 
mmiication  with  Great  Britain.  Just  as  neutrals 
who  do  not,  or  are  not  able  to,  prevent  a  beUigerent 
from  marching  troops  through  their  neutral  terri- 
tories cannot  complain  if  the  other  belhgerent  hke- 
wise  invades  these  territories  and  attacks  the  enemy 
there,  so  neutrals  cannot  complain  if  a  beUigerent 
prevents  commercial  intercourse  between  another  belh- 
gerent and  neutrals  because  they  did  not  prevent  that 
other  belhgerent  from  resorting  to  measures  designed 
to  stop  intercourse  between  the  first  beUigerent  and 
neutrals.  The  rule  that  belhgerents  must  not  inter- 
fere with  the  legitimate  commerce  of  neutrals  is  based 
on  a  compromise — just  as  is  the  rule  that  belhgerents 
must  not  violate  neutral  territory  ;  and  it  presupposes 
that  both  belhgerents  will  carry  it  out,  and  that  neutrals 
wiU  prevent  both  of  them  from  violating  it.  If,  on 
the  contrary,  neutrals  acquiesce  in  the  violation  of 
this  rule  by  one  beUigerent  to  the  vital  disadvantage 
of  the  other  belhgerent,  the  latter  cannot  be  expected 
to  sufier  this  without  redress,  and  must  be  excused  if, 
in  retahating  upon  the  enemy,  he  also  violates  the 
rule.^ 

On  February  1,  1917,  Germany  embarked  upon  a 
further  extended  submarine  practice,  and  thereby  pro- 
voked a  new  reprisals  Order  in  CouncU  of  February  16, 

^  See  below,  §360,  n.  2.    Whether  of  March  11,   1915,  as  being  in  ac- 

a  belligerent  is  justitied  in  resorting  cordance    with    International    Law. 

to  reprisals  which  injure  neutrals  as  See    The  Stigstad,  (1916)   2  B.   and 

well  as  the  enemy  is  a  very  contro-  C.  P.  C.  179,  affirmed  by  the  PrivT 

versial  question.     See  Phillimore  in  Council,  3  B.  and  C.  P.  C.  347  ;    The 

the  Grotius  Society,  ii.  p.  175  ;  Pyke,  United  States,  (1916)  2  B.  and  C.  P.  C. 

The    Law    of   Contraband    of   War  390;  TAc/'rederici- F///.,  (1916)  2 B. 

(1915),  p.  4:    A.J.,  ix.   (1915),  pp.  and  C.  P.  C.  395;  and  in  particular 

673,  680.     The  British  Prize  Courts  The  Leonora,  (1918)  3  B.  and  C.  P.  C. 

have  recognised  the  Order  in  Council  181,  385. 


428  BELLIGERENTS   AND  NEUTRALS 

1917,^  which  decreed  that  any  vessel  carrying  goods 
with  an  enemy  destination,  or  of  enemy  origin,  should 
be  liable  to  capture  and  condemnation  in  respect  of 
the  carriage  of  such  goods  unless  she  called  before 
capture  at  a  British  or  Allied  port  for  the  examination 
of  her  cargo,  and  that  goods  found  on  examination 
to  be  goods  of  enemy  origin  or  enemy  destination 
should  be  liable  to  condemnation.  This  Order  in 
Council  was  in  my  opinion  ultra  vires,  because  it 
threatened  punishment  and  assumed  jurisdiction  over 
neutral  ships  for  acts  which,  according  to  International 
Law,  are  perfectly  legitimate.  That  a  belhgerent  may 
in  certain  cases  as  a  matter  of  reprisals  attempt  to 
prevent  all  exports  from,  and  imports  to,  the  enemy 
country,  I  consider  to  be  in  accordance  with  Inter- 
national Law ;  but  he  transgresses  the  permissible 
Hmits  of  action  if  he  condemns  and  confiscates  neutral 
ships  and  their  cargoes  for  carrying  enemy  goods 
from  or  to  the  enemy  country.^ 


II 


NEUTRALS  AND  MILITARY   OPERATIONS 

Vattel,  iii.  §§  105,  118-135— Hall,  §§  215,  219,  220,  226— Westlake,  ii.  pp. 
227-232— Lawrence,  §§  229,  234-240— Manning,  pp.  225-227,  245-250— 
Twiss,  ii.  §§  217,  218,  228— Taylor,  §§  618,  620,  632,  635— Walker, 
§§  55,  57,  59-61— Wharton,  iii.  §§  397-400— Moore,  vii.  §§  1293-1303— 
Wheaton,  §§  426-429— Bluntschli,  §§  758,  759,  763,  765,  769-773— 
Heffter,  §§  146-150— Geffcken  in  Holtzendorff,  iv.  pp.  657-676— Ullraann, 
§  191— Bonfils,  Nos.  1449-1457,  1460,  1469,  1470— Despagnet,  Nos. 
690-692— Rivier,  ii.  pp.  395-408— Calvo,  iv.  §§  2644-2664,  2683— Fiore, 
iii.  Nos.  1546-1550,  1574-1575,  1582-1584— Martens,  ii.  §§  131-134— 
Kleen,  i.  §§  70-75,  116-122— M^rignhac,  iii".  pp.  516-547— Pillet,  pp. 
284-289— Perels,  §   39— Testa,  pp.    173-180— Heilborn,    Rechte,    pp.  4- 

^  London  Gazette,  February  23,  181,  which  declared  the  Order  in 
1917.  Council  of  February  16,  1917,  to  be 

in    accordance    with    International 

*  See,  however,  the  judgment  in  Law.  It  was  affirmed  by  the  Privy 
The  Leonora,  (1918)  3  B,  and  C.  P.  C.        Council  i,ihid.,  385). 


NEUTRALS  AND  MILITARY   OPERATIONS  429 

12— Dupuis,  No8.  308-310,  315-317,  and  Ouerre,  Nos.  277-294— LoTid 
War/are,  §§  465-471 — Einicke,  Rechte  und  Pflichten  der  neutralen  Mdchte 
im  Seekrieg  (1912),  pp.  22-70— Wehberg,  §  11. 

§  320.  The  duty  of  impartiality  incumbent  upon  a  Hostiii- 
neutral  must  obviously  prevent  him  from  committing  ^13  ^^ 
hostihties  against  either  belligerent.     This  would  need  against 

...  Neutrals. 

no  mention,  except  to  distinguish  between  hostihties 
on  the  one  hand,  and,  on  the  other,  military  or  naval 
acts  of  force  by  a  neutral  for  the  purpose  of  repulsing 
violations  of  his  neutrahty  committed  by  either  belli- 
gerent. Hostihties  by  a  neutral  are  acts  of  force  per- 
formed for  the  purpose  of  attacking  a  belhgerent. 
They  are  acts  of  war,  and  they  create  a  condition  of 
war  between  such  neutral  and  the  belhgerent  con- 
cerned. If,  however,  a  neutral  does  not  attack  a 
belligerent,  but  only  repulses  him  by  force  when  he 
violates,  or  attempts  to  violate,  the  neutrahty  of  the 
neutral,  this  does  not  constitute  hostihties.  Thus,  if 
men-of-war  of  a  belhgerent  attack  an  enemy  vessel  in 
a  neutral  port  and  are  repulsed  by  neutral  men-of-war, 
or  if  belhgerent  forces  try  to  make  their  way  through 
neutral  territory  and  are  forcibly  prevented  by  neutral 
troops,    no   hostihties   have   been   committed   by   the  , 

neutral,  who  has  done  nothing  else  than  fulfil  his  duty 
of  impartiahty.  Article  10  of  Convention  v.  enacts 
categorically  that '  the  fact  of  a  neutral  Power  repelhng, 
even  by  force,  attacks  on  its  neutrahty,  cannot  be  con- 
sidered as  a  hostile  act."  And  stress  must  be  laid  on 
the  fact  that  it  is  no  longer  legitimate  for  a  belhgerent 
to  pursue  ^  mihtary  or  naval  forces  who  take  refuge  on 
neutral  territory ;  should  a  belhgerent  nevertheless  do 
this,  he  must,  if  possible,  be  repulsed  by  the  neutral. 

It  is,  on  the  other  hand,  hkewise  obvious  that 
hostihties  against  a  neutral  on  the  part  of  either  belh- 
gerent are  acts  of  war,  and  not  mere  violations  of 

'  See  above,  §  288,  and  below,  §  347  (4). 


430  BELLIGERENTS   AND   NEUTRALS 

neutrality.  Thus  the  German  attack  on  Belgium  in 
1914,  to  enable  German  troops  to  march  through  Belgian 
territory  and  attack  France,  created  war  ^  between 
Germany  and  Belgium.  If,  however,  forces  of  one 
beUigerent  attack  forces  of  the  other  belhgerent, 
which  have  taken  refuge  on  neutral  territory,  or  which 
are  there  for  other  purposes,  such  attacks  do  not 
constitute  hostihties  against  the  neutral,  but  are  mere 
violations  of  neutrahty  ;  and  they  must  be  repulsed  or 
reparation  must  be  made  for  them,  as  the  case  may  be. 
Quite  a  pecuhar  condition  arose  at  the  outbreak  of, 
and  during,  the  Eusso-Japanese  War.  The  ends  for 
which  Japan  went  to  war  were  the  expulsion  of  the 
Russian  forces  from  the  Chinese  Province  of  Manchuria 
and  the  hberation  of  Korea,  which  was  at  the  time  an 
independent  State,  from  the  influence  of  Russia.  Man- 
churia and  Korea  became  therefore  part  of  the  region 
of  war,  although  both  were  neutral  territories,  and 
neither  China  nor  Korea  became  parties  to  the  war. 
The  hostihties  which  occurred  on  these  neutral  terri- 
tories were  in  no  wise  directed  against  the  neutrals 
concerned.  This  anomalous  situation  arose  out  of  the 
inabihty  of  both  China  and  Korea  to  free  themselves 
from  Russian  occupation  and  influence,  Japan  con- 
sidering her  action,  which  must  be  classified  as  an 
intervention,  to  be  justified  on  account  of  her  vital 
interests.  The  Powers  recognised  this  situation  by 
influencing  China  not  to  take  part  in  the  war,  and  by 
influencing  the  belhgerents  not  to  extend  mihtary 
operations  beyond  the  borders  of  Manchuria.  Man- 
churia and  Korea  having  become  part  of  the  region  of 
war,^  the  hostihties  committed  there  by  the  belhgerents 
against  one  another  cannot  be  classified  as  violations 
of  neutrahty.     The  cases  of  The  Variag  and  The  Korietz, 

'  See  above,  §  71. 

^  See  above,  §  71  ;  Lawrence,  War,  pp.  268-294 ;  Ariga,  §§  16-22. 


NEUTRALS   AND  MILITARY   OPERATIONS  431 

and  the  case  of  The  Reshitelni,  may  illustrate  the  peculiar 
condition  of  affairs  : — 

(1)  On  February  8,  1904,  a  Japanese  squadron  under 
Admiral  Uriu  entered  the  Korean  harbour  of  Chemulpo 
and  disembarked  Japanese  troops.  The  next  morning 
Admiral  Uriu  requested  the  commanders  of  two  Russian 
ships  in  that  harbour,  the  Variag  and  the  Korietz,  to 
leave  the  harbour  and  engage  him  in  battle  outside, 
threatening  to  attack  them  inside  the  harbour  in  case 
they  refused.  But  they  did  not  refuse,  and  the  battle 
took  place  outside  the  harbour,  but  within  Korean 
territorial  waters.^  The  complaint  made  by  Russia 
that  in  this  case  the  Japanese  violated  Korean  neu- 
traUty,  would  seem  to  be  unjustified,  since  Korea  fell 
within  the  region  of  war.^ 

(2)  The  Russian  destroyer  Reshitelni,  one  of  the 
vessels  that  escaped  from  Port  Arthur  on  August  10, 
1904,  took  refuge  in  the  Chinese  harbour  of  Chifu. 
On  August  12,  two  Japanese  destroyers  entered  the 
harbour,  captured  her,  and  towed  her  away.^  There 
ought  to  be  no  doubt  that  this  was  a  violation  of  neu- 
trahty,*  since  Chifu  does  not  belong  to  the  part  of 
China  which  fell  within  the  region  of  war. 

Anomalous  also  was  the  situation  during  the  World 
War,  when,  while  Greece  was  still  neutral,^  the  AUies 
occupied  Salonika  and  also  Corfu  and  certain  other 
Greek  islands.  The  forces  which  had  landed  at  Salonika 
were  attacked  by  Bulgaria  and  the  other  Central 
Powers.^ 

^  See  Lawrence,  JFar,  pp.  279-289,  Korea.      See    The    Tinos,    above,    § 

and  Takahashi,  pp.  462-46G.  71  n. 

-  It  was  for  this  reason  tliat  the  *  See   Lawrence,    War,    pp.    291- 

JapanesePrizeCourts  in  1904,  during  294,  and  Takahashi,  pp.  4.37-444. 
the  Russo-Japanese  War,  condemned  *  See  below,  §§  360  and  361,  where 

the    Russian    vessels    Ekaterinoslav  the  cases  of   The  Dresden  and    The 

(Hurst    and    Bray,    ii.    p.     1)    and  General  Armstrong  are  discussed. 
Mukden  (ibid.,  ii.  p.    12),  although  '  See  above,  §  306. 

they  were  captured,  not  on  the  open  *  See   below,  §  323,  and  Gamer, 

sea,  but  in  the  territorial  waters  of  ii,  §§  464-473. 


432  BELLIGERENTS   AND   NEUTRALS 

Furnish-  §  321.  If  a  State  remaiais  neutral,  it  violates  its 
Troops  impartiality  by  furnishing  a  belligerent  with  troops 
and  Men-  qj,  meu-of-war ;    and  it  matters  not  whether  it  renders 

of-War  to  ,  '  r      1         1     IT 

Beiiiger-  such  assistauce  to  one  of  the  belligerents,  or  to  both 
^^  '  alike.  "Whereas  Convention  v.  does  not  mention  the 
furnishing  of  troops,  Article  6  of  Convention  xiii. 
enacts  that  '  the  supply,  in  any  manner,  directly  or 
indirectly,  by  a  neutral  Power  to  a  beUigerent  Power,  of 
warships,  ammunition,  or  war  material  of  any  kind 
whatever,  is  forbidden." 

However,  it  is  controversial  whether  a  neutral  State, 
which  in  time  of  peace  had  concluded  a  treaty  with 
one  of  the  belhgerents  to  furnish  him  in  case  of  war 
with  a  hmited  number  of  troops,  would  violate  its 
neutrahty  by  fulfilling  its  treaty  obhgation.  Several 
writers  ^  have  answered  the  question  in  the  negative, 
and  there  is  no  doubt  that  during  the  eighteenth  century 
such  cases  happened.  But  no  case  happened  dm^ing 
the  nineteenth  century,  and  there  ought  to  be  no  doubt 
that  nowadays  the  answer  must  be  in  the  affirmative, 
since  a  quahfied  neutrality  ^  is  no  longer  admissible. 

As  regards  furnishing  men-of-war  to  belhgerents, 
the  question  arose  durmg  the  Russo-Japanese  War 
whether  a  neutral  violates  his  duty  of  impartiality 
by  not  preventing  his  national  steamship  companies 
from  selling  to  a  belhgerent  such  of  their  hners  as  are 
destined  in  case  of  war  to  be  incorporated  as  cruisers 
in  the  national  navy.  The  question  was  discussed  on 
account  of  the  sale  to  Russia  of  the  Augusta  Victoria 
and  the  Kaiserin  Maria  Theresia  by  the  North  German 
Lloyd,  and  the  Filrst  Bismarck  and  the  Columbia  by  the 
Hamburg- American  Line ;  for  these  vessels  were  at 
once   enrolled  in   the   Russian  Navy   as   second-class 

^  See,  for  instance,  Bluntschli,  §  Denmark  furnishing  troops  to  Russia 
759,  and  HefiPter,  §  144.  See  above,  in  1788  during  a  Ruaso-Swedish  war. 
§  306  (2),  where  the  case  is  quoted  of  *  See  above,  §  305. 


NEUTRALS   AND  MILITARY   OPERATIONS  433 

cruisers,  re-named  Kvban,  Ural,  Don,  and  Terek.  Had 
these  vessels  by  an  arrangement  with  the  German 
Government  really  been  auxihary  cruisers  to  the  German 
Navy,  and  had  the  German  Government  given  its  con- 
sent to  the  transaction,  a  violation  of  neutrahty  would 
have  been  committed  by  Germany.  But  the  German 
Press  maintained  that  they  had  not  been  auxihary 
cruisers,  and  Japan  did  not  lodge  a  protest  with 
Germany  on  account  of  the  sale.  If  these  hners 
were  not  auxihary  cruisers  to  the  German  Navy, 
their  sale  to  Russia  was  a  legitimate  sale  of  articles 
of  contraband.^ 

§  322.  Although  several  States,  as,  for  instance,  Subjects 
Great  Britain  ^  and  the  United  States  of  America,  by  Neutrals 
their  Municipal  Law  prohibit  their  subiects  from  enhst-  fighting 

T  .  1     IT  among 

mg  in  the  mihtary  or  naval  service  of  belhgerents,  the  Belli - 
duty  of  impartiahty  incumbent  upon  neutrals  does  not  lorees. 
at  present  include  any  necessity  for  such  prohibition, 
provided  that  the  individuals  concerned  cross  the 
frontier  singly  ^  and  not  in  a  body.  But  a  neutral 
must  recall  his  mihtary  and  naval  officers  who  may 
have  been  serving  in  the  army  or  navy  of  either  belh- 
gerent  before  the  outbreak  of  war ;  and  must  retain 
mihtary  and  naval  officers  who  want  to  resign  their 
commissions  for  the  obvious  purpose  of  enhsting  in  the 
service  of  either  belhgerent.  Therefore,  when  in  1877, 
during  war  between  Turkey  and  Serbia,  Russian  officers 
left  the  Russian  Army  and  entered  the  Serbian  Army 
as  volunteers  wdth  permission  of  the  Russian  Govern- 
ment, there  was  a  violation  of  the  duty  of  impartiahty 
on  the  part  of  neutral  Russia. 

On  the  other  hand,  there  is  no  violation  of  neutrahty 
in  a  neutral  allowing  surgeons  and  other  non-com- 
batant members  of  his  army  vested  with  a  character 

*  See  below,  §  397.  ment  Act,  1870. 

*  See  §  4  of  the  Foreign  Enlist-  '  See  Article  6  of  Convention  v. 

VOL.   II.  2E 


434  BELLIGERENTS   AND   NEUTRALS 

of  inviolability  according  to  the  Geneva  Convention 

to  enlist,  or  to  remain,  in  the  service  of  either  belHgerent. 

Passage        §  323.  In   contradistinction  to   the   practice   of   the 

fnd  War  eighteenth  century,^  it  is  now  generally  recognised  that 

Material   ^  \dolation  of  the  duty  of  impartiahty  is  involved  when 

through  ,      ,-  -    -;,.  5    .1  r   J 

Neutral    a  ncutral  allows  a  bemgerent  the  passage  oi  troops  or 

Territory.  ^-^^  transport  of   War   material   or   supphes   over  his 

territory.^    And  it  matters  not  whether  a  neutral  gives 

such  permission  to  one  of  the  belhgerents  only,  or  to 

both  alike. 

(a)  The  Passage  of  Troops 

The  practice  of  the  eighteenth  century  was  unavoid- 
able at  that  time,  since  many  German  States  consisted 
of  parts  distant  one  from  another,  so  that  their  troops 
had  to  pass  through  other  sovereigns'  territories  for  the 
'purpose  of  reaching  outlying  parts.  At  the  begimiing 
of  the  nineteenth  century,  the  passing  of  belhgerent 
troops  through  neutral  territory  still  occurred.  Prussia, 
although  she  at  first  repeatedly  refused,  at  last  in  1805 
entered  into  a  secret  convention  with  Russia  granting 
Russian  troops  passage  through  Silesia  during  war  with 
France.  On  the  other  hand,  even  before  Russia  had  made 
use  of  this  permission.  Napoleon  ordered  Bernadotte  to 
march  French  troops  through  the  then  Prussian  territory 
of  Anspach  without  even  asking  the  consent  of  Prussia. 
In  spite  of  the  protest  of  the  Swiss  Government,  Austrian 
troops  passed  through  the  Swiss  territory  in  1813,  and 
when  in  1815  war  broke  out  again  through  the  escape 
of  Napoleon  from  the  island  of  Elba  and  his  return  to 
France,  Switzerland  granted  to  the  alhed  troops  passage 
through  her  territory.^  But  since  that  time  it  has 
become  universally  recognised  that  all  passage  of  belli- 
gerent troops  through  neutral  territory  must  be  pro- 
hibited, and  the  Powers  declared  expressis  verbis  in  the 

1  See  Vattel,  iii.  §§  119-132.  pp.  289-316. 

2  See  Dumas  in  R.G.,  xvi.  (1909),  "  See  Wheaton,  §§  418-420. 


NEUTRALS  AND  MILITARY   OPERATIONS  435 

Act  of  November  20,  1815,  which  neutrahsed  Switzer- 
land, and  was  signed  at  Paris,^  that  '  no  inference 
unfavourable  to  the  neutrahty  and  inviolabihty  of 
Switzerland  can  and  must  be  drawn  from  the  facts 
which  have  caused  the  passage  of  the  allied  troops 
through  a  part  of  the  territory  of  the  Swiss  Confedera- 
tion.' The  few  instances  ^  in  which  during  the  nine- 
teenth century  States  pretended  to  remain  neutral, 
but  nevertheless  allowed  the  troops  of  one  of  the  belh- 
gerents  passage  through  their  territory,  led  to  war 
between  the  neutral  and  the  other  belhgerent. 

As  has  been  akeady  stated,^  in  October  1915  during 
the  World  War,  while  Greece  was  still  neutral,  the  Alhes, 
on  the  invitation  of  M.  Venizelos,  then  prime  minister 
of  Greece,  disembarked  troops  at  Salonika  for  the 
purpose  of  bringing  aid  to  Serbia.  The  Greek  Govern- 
ment protested  fro  forma,  but  did  not  put  any  obstacle 
in  the  way  of  their  landing.  This  led  to  an  attack  on 
Salonika  by  the  Central  Powers,  but  war  between  the 
Central  Powers  and  Greece  did  not  ensue  until  much  later."* 

However,  just  as  in  the  case  of  furnishing  troops,  it  is 
a  moot  point  whether  passage  of  troops  can  be  granted 
without  violating  the  duty  of  impartiahty  incumbent 
upon  a  neutral,  in  case  a  neutral  is  required  to  grant  it 
in  consequence  of  an  existing  State  servitude,  or  of  a 
treaty  previous  to  the  war.  There  ought  to  be  no  doubt 
that,  since  nowadays  quahfied  neutrahty  is  no  longer  ad- 
missible, the  question  must  be  answered  in  the  negative.^ 

(b)  The  Transport  of  War  Material  a)id  Supplies 

With  regard  to  the  transport  of  war  material  and 
supphes,  Ai-ticle  2  of  Hague  Convention  v.  categorically 

"■  See  Martens,  X.R.,  ii.  p.  741.  *  See  above,  §§  305-306,  and  vol.  i. 

*  See  Heilborn,  Rechte,  pp.  8-9.  §  207.      Clauss    pie  Lehre  von  den 

Above,  §§  306,  320.  217,  must  likewise  be  referred   to. 

*  Above,  §  320,  and  Garner,  ii.  See  also  Dumas  in /?.  G. ,  xvi.  (1909), 
§§  464-473.  pp.  289-316. 


436  BELLIGERENTS   AND   NEUTRALS 

enacts  that  '  belligerents  are  forbidden  to  move  across 
the  territory  of  a  neutral  Power  troops  or  convoys 
either  of  munitions  of  war  or  of  suppHes.'  But  different 
from  this  case  is  the  case  in  which  munitions  and  the 
hke  are  sent  by  private  individuals  to  a  belhgerent 
across  neutral  territory.  As  to  this,  Article  7  of  that 
convention  lays  down  the  rule  that  '  a  neutral  Power 
is  not  bound  to  prevent  the  export  or  transit,  for  one 
or  the  other  of  the  belhgerents,  of  arms,  munitions  of 
war,  or,  in  general,  of  anything  which  can  be  of  use  to 
an  army  or  fleet/ 

The  distinction  between  these  two  articles  was  inci- 
dentally considered  ^  during  the  controversy  that  arose 
in  the  World  War  between  Great  Britain  and  Holland 
concerning  the  transit  of  metals  from  Belgium  (then 
under  German  mihtary  occupation)  to  Germany,  and 
of  sand  and  gravel  from  Germany  to  occupied  Belgium 
through  Dutch  territory.  Great  Britain  argued  that 
Holland,  by  permitting  such  traffic  (whatever  the 
purpose  for  which  the  materials  were  used),  was  giving 
direct  assistance  to  Germany,  and  so  committing  a 
violation  of  neutrahty.  Holland,  on  the  other  hand, 
argued  that  she  was  only  bound  to  prevent  the  transit 
of  these  materials  when  they  were  connected  with 
mihtary  operations,  and  that  the  consignments  which 
had  passed  through  were  not  so  connected. 
Passage  of  §  324.  The  passage  of  wounded  soldiers  is  different 
thrmTlr^  from  that  of  troops.  If  a  neutral  allows  the  passage 
Neutral  of  woundcd  soldicrs,  he  certainly  does  not  render 
em  orj.  ^^.^^^  assistaucc  to  the  belhgerent  concerned.  But 
it  may  well  be  that  he  gives  indirect  assistance 
because  a  belhgerent,  being  reheved  from  trans- 
porting his  wounded,  can  now  use  the  hnes  of  com- 
munication for  the  transport  of  troops,  war  material, 
and  provisions.    Thus  when  in  1870,  after  the  battles 

1  Pari.  Papere,  Misc.,  No.  17  (1917),  Cd.  8693,  and  Garner,  ii.  §  570. 


NEUTRALS   AND  MILITARY  OPERATIONS  437 

of  Sedan  and  Metz,  Germany  applied  to  Belgium  and 
Luxemburg  to  allow  her  wounded  to  be  sent  through 
their  territories,  France  protested  on  the  ground  that 
the  relief  thereby  given  to  the  German  hnes  of  com- 
munication would  be  an  assistance  to  the  mihtary 
operations  of  the  German  Army.  Belgium,  on  the 
advice  of  Great  Britain,  did  not  grant  the  request, 
but  Luxemburg  did.^ 

According  to  Article  14  of  Convention  v.  a  neutral 
Power  may  grant  the  passage  of  the  wounded  or  sick 
at  the  request  of  a  belhgerent.  If  he  does,  the  trains 
bringing  them  must  carry  neither  combatants  nor  war 
material,  and  those  of  the  wounded  and  sick  who  belong 
to  the  army  of  the  other  belhgerent  must  remain  on  the 
neutral  territory,  must  there  be  guarded  by  the  neutral 
Government,  and,  after  having  recovered,  must  be  pre- 
vented from  returning  to  their  home  State  and  rejoining 
their  corps.^  By  Article  14  it  is  left  to  the  discretion 
of  a  neutral  whether  or  not  he  will  allow  the  passage 
of  wounded  and  sick ;  he  must,  therefore,  investigate 
every  case,  and  come  to  a  conclusion  according  to  its 
merits.  During  the  World  War,  the  United  States, 
while  neutral,  did  not  allow  certain  wounded  or  dis- 
abled Canadian  soldiers  to  pass  through  American 
territory  on  their  way  home  after  discharge.^ 

§  325.  In  contradistinction  to  passage  of  troops  Passage  of 
through  his  territory,  the  duty  of  impartiality  in-  wlr^° 
cumbent  upon  a  neutral  does  not  require  him  to  forbid 
the  passage  of  belhgerent  men-of-war  ^  through  the 
maritime  belt  forming  part  of  his  territorial  waters. 
Article  10  of  Convention  xiii.  categorically  enacts  that 
*  the  neutrality  of  a  Power  is  not  violated  {nest  fas 

^  See  Hall,  §  219,  and  GefiFcken  in  interned  in  neutral  territory.' 

HoUzendorff,  iv   p    664  3  g^e  Garner,  ii.  §  570. 

•*  According  to  Article  15  of  Con- 
vention V. ,  the  '  Geneva  Convention  ''  See    Train6,    Das   Oastrecht   im 
applies  to    the    sick    and   wounded  Seekrieg  (1912),  §§  8-12. 


438  BELLIGERENTS   AND   NEUTRALS 

compromise)  by  the  mere  passage  of  belligerent  men-of- 
war  and  their  prizes.'    Since  ^  every  httoral  State  may, 
even  in  time  of  peace,  prohibit  the  passage  of  foreign 
men-of-war  through  its  maritime  belt  unless  it  forms  a 
part  of  the  highways  for  international  trafiic,  it  may 
certainly  prohibit  the  passage  of  belHgerent  men-of-war 
in  time  of  war.    Thus,  at  the  outbreak  of  the  World  War 
in  1914,  Holland  declared  that  belhgerent  war-vessels 
would  not  be  allowed  passage  through  her  maritime 
belt  in  Europe,  and  later  she  seized  German  and  British 
submarines  which,  though  not  in  distress,  had  entered 
Dutch   territorial   waters,    and   interned    their   crews. 
Again,    in    1916,    Norway    declared    that    thenceforth 
belligerent  submarines  would  not  be  allowed  to  pass 
through   her   territorial   waters.^    However,    no   duty 
exists  for  a  neutral  to  prohibit  such  passage  in  time 
of  war.     Nor  need  he  exclude  belligerent  men-of-war 
from  his  ports,  although  he  may  do  this  hkewise.     The 
reason  is  that  such  passage   and   such   admission  to 
ports   involves   very   httle   assistance   indeed,    and   is 
justified  by  the  character  of  the  sea  as  an  international 
high-road.     But  it  is  obvious  that  belhgerent  men-of- 
war  must  not  commit  any  hostihties  against  enemy 
vessels  during  their  passage,   and  must  not  use  the 
neutral  maritime  belt  and  neutral  ports  as  a  basis  for 
their  operations  against  the  enemy.^ 
Occupa-        §  326.  In  contradistinction  to  the  practice  of  the 
Neutral    eighteenth   century,*   the   duty   of   impartiahty   must 
Territory  nowadays   prevent   a   neutral   from   permitting   belh- 
ligerents.  gerctits  to  occupy  a  neutral  fortress,  or  any  other  part 
of    neutral    territory.     Even    if    a    treaty    previously 
entered  into  stipulates  such  occupation,  it  cannot  be 
granted  without  violation  of  neutrahty.^    On  the  con- 

^  See  above,  vol.  i.  §  188.  *  See  Kleen,  i.  §  116. 

2  See  Garner,  ii.  §  562.  ^  See  Kliiber,  §  281,  who  asserts 

*  See  below,  §  333.  the  contrary. 


NEUTRALS  AND   MILITARY   OPERATIONS  439 

trary,  the  neutral  must  even  use  force  to  prevent  belli- 
gerents from  occupying  any  part  of  his  neutral  terri- 
tory.^   The  question  whether  such  occupation  on  the 
part  of  a  belhgerent  would  be  excusable  in  case  of 
extreme  necessity  in  self-defence  on  account  of  the 
neutral's  inability  to  prevent  the  other  belhgerent  from 
making  use  of  the  neutral  territory  as  a  base  for  his 
mihtary  operations  must,  I  think,  be  answered  in  the 
affirmative,  since  an  extreme  case  of  necessity  in  the 
interest  of  self-defence  must  be  considered  as  an  excuse.^ 
But  necessity  of  this  kind  and  degree  exists  only  when 
the  use  of  the  territory  by  the  enemy  is  imminent ; 
it  is   not   sufficient   that  a  belhgerent   should  merely 
fear  that   his   enemy   might    perhaps    attempt    so  ||to 
use  it. 

§  327.  It  has  long  been  universally  recognised  that  Prize 
the  duty  of  impartiahty  must  prevent  a  neutral  from  Neutral  ° 
permitting  a  belligerent  to  set  up  Prize  Courts  on  neutral  Territory, 
territory.     The  intention  of  a  belhgerent  in  so  doing 
can  only  be  to  facihtate  the  plundering  by  his  men-of- 
war  of  the  commerce  of  the  enemy  ;  a  neutral  tolerating 
such  Prize  Courts  would,  therefore,  indirectly  assist  the 
belligerent  in  his  naval  operations.     During  the  eight- 
eenth century,  however,  it  was  not  considered  illegiti- 
mate for  neutrals  to  allow  the  setting  up  of  Prize  Courts 
on  their  territory.     The  '  Reglement  du  Roi  de  France 
concernant   les   Prises   qui   seront   conduites   dans   les 
Ports  etrangers,  et  les  Formahtes  que  doivent  remphr 
les  Consuls  de  S.M.  qui  y  sont  etabhs  '  of  1779,  furnishes 
a  striking  proof  of  it.     But  after  the  United  States  of 

1  As  to  the  occupation  of  parts  of  mentioned    above    as   an   excuse.— 

Greek  territory  during   the  World  There  is  a  difference  between  this 

■War,  see  above,  §  320.  case  and  the  case  which  arose  at  the 

outbreak  of  the  Russo-Japanese  War, 

°  See  Vattel,   iii.    §   122 ;    Blunt-  when     both     belligerents     invaded 

schli,    §   782 ;     Calvo,    iv.     §   2642.  Korea,  for,  as  was  explained  above 

Kleen,  i.  §  116,  seems  not  to  recog-  in  §  320,  Korea  and  Manchuria  fell 

nise  an  extreme  necessity  of  the  kind  within  the  region  of  war. 


440  BELLIGERENTS   AND  NEUTRALS 

America  in  1793  closed  down  the  French  Prize  Courts 
set  up  by  the  French  envoy  Genet  on  her  territory,^  it 
became  recognised  that  such  Prize  Courts  are  incon- 
sistent with  the  duty  of  impartiahty  incumbent  upon 
a  neutral,  and  Article  4  of  Convention  xiii.  so  enacts. 
Belli-  §  328.  It  would,  no  doubt,  be  an  indirect  assistance 

Prizes  fn   to  the  uaval  operations  of  a  belligerent  if  a  neutral 
Neutral    allowcd  him  to  organise  on  neutral  territory  the  safe- 
keeping or  sale  of  prizes. 

But  the  case  of  a  temporary  stay  of  a  belhgerent 
man-of-war  with  her  prize  in  a  neutral  port  is  different. 
Neutral  Powers  may — although  most  maritime  States 
no  longer  do — allow  prizes  to  be  brought  temporarily 
into  their  ports.^  Articles  21  and  22  of  Convention  xiii. 
lay  down  the  following  rules :  A  prize  may  only  be 
brought  into  a  neutral  port  on  account  of  unseaworthi- 
ness, stress  of  weather,  or  want  of  fuel  or  provisions  ; 
it  must  leave  as  soon  as  the  circumstances  which 
justified  its  entry  are  at  an  end,  and  if  it  does  not,  the 
neutral  Power  must  order  it  to  leave  at  once,  and 
must,  in  case  of  disobedience,  employ  the  means  at  its 
disposal  to  release  the  prize  with  its  officers  and  crew, 
and  to  intern  the  prize  crew ;  a  prize  brought  into  a 
neutral  port  for  reasons  other  than  unseaworthiness, 
stress  of  weather,  or  want  of  fuel  or  provisions, — for 
instance,  to  avoid  recapture — must  forthwith  be  released 
by  the  neutral  Power.  Article  22  does  not  mention  that 
in  such  a  case  the  prize  crew  must  be  interned,  but 
there  is  no  doubt  that  they  must  be.^ 

The  question  requires  attention  whether  a  prize, 
whose  unseaworthiness  is  so  great  that  it  cannot  be 
repaired,  may  be  allowed  to  remain  in  the  neutral  port, 
and  be  there  sold  ^  after  the  competent  Prize  Court  has 

1  See  above,  §  291  (1).  =>  The  United  States  interned  the 

^  See   Train6,    Das   Gastrecht   im  prize    crew    in    the    case    of    The 

Seekrieg  (1912),  §  20  ;  Scott  in  A.  J.,  Appam.     See  below,  §  328a. 

X.  (1916),  pp.  104-112.  *  See  Kleen,  i.  §  115. 


NEUTRALS   AND    MILITARY    OPERATIONS  441 

condemned  it.  Since  Article  21  enacts  that  an  admitted 
prize  must  leave  the  neutral  port  as  soon  as  ther  circum- 
stances which  justified  its  entry  are  at  an  end,  there 
is  no  doubt  that  it  may  remain  if  it  camiot  be  repaired 
so  as  to  be  made  seaworthy.  There  ought,  consequently, 
to  be  no  objection  to  its  sale  in  the  neutral  port,  pro- 
vided it  has  previously  been  condemned  by  the  proper 
Prize  Court. 

While  Article  21  cannot  meet  with  any  objection. 
Article  23  of  Convention  xiii.  is  of  a  very  doubtful 
character.  It  enacts  that  a  neutral  Power  may  allow 
prizes  to  enter  its  ports,  whether  mider  convoy  or  not, 
when  they  are  brought  there  to  be  sequestrated  pending 
the  decision  of  a  Prize  Court ;  and  the  restrictions 
imposed  by  Article  21  do  not  apply  to  prizes  brought 
into  a  neutral  port  under  Ai'ticle  23.  It  would  in 
practice  enable  a  belligerent  to  safeguard  aU  his  prizes 
against  recapture,  and  a  neutral  Power  which  allowed 
belhgerent  prizes  access  to  its  ports  under  it  would 
indirectly  render  assistance  to  the  naval  operations  of 
the  belhgerent  concerned.  For  this  reason.  Great 
Britain,  Japan  and  Siam,  and  also  the  United  States 
of  America  when  she  acceded  to  the  convention  in 
December  1909,  entered  a  reservation  against  Article 
23.  Be  that  as  it  may,  those  Powers  which  have 
accepted  Article  23  will  not,  I  beheve,  object  to  the 
sale  in  the  neutral  port  of  such  sequestrated  prizes, 
provided  they  have  previously  been  condemned  by 
the  proper  Prize  Court. 

§  328a.  On  several  occasions  during  the  World  War  The  case 
German  cruisers  brought  their  prizes  into  neutral  ports,  j^^. 
Thus  in  March  1915  the  German  cruiser  Prinz  Eitel 
Friedrich  conducted  a  French  prize  into  a  Chihan  port, 
and  at  other  times  German  war-vessels  took  the  cap- 
tured steamers  Valentine,  Helicon,  and  Sacramento  into 
the  Chihan  harbour  of   Juan  Fernandez.     These  acts 


442  BELLIGERENTS   AND  NEUTRALS 

were  the  subject  of  various  protests. ^  But  the  case 
which  attracted  most  attention  was  that  of  The  Affam. 
This  British  Hner  was  captured  by  a  German  war- 
vessel  off  the  coast  of  Africa,  and  was  navigated  across 
the  Atlantic  by  a  prize  crew,  unaccompanied  by  the 
captor,  to  the  then  neutral  American  port  of  Newport 
News.  The  American  Government  thereupon  hberated 
the  ship's  crew  and  passengers,  and  interned  the  prize 
crew,  and  the  owners  of  the  vessel  instituted  proceed- 
ings in  the  American  courts  for  her  release.  The  court 
of  first  instance  held  that  Articles  21  and  22  of  Hague 
Convention  xin.^  were  declaratory  of  existing  rules  of 
International  Law,  under  which  neutral  ports  might 
not  become  places  of  asylum  or  permanent  rendezvous 
for  belhgerent  prizes ;  that  the  Affam  had  been 
brought  to  the  United  States  for  reasons  other  than 
unseaworthiness,  stress  of  weather,  or  want  of  fuel  or 
provisions,  and  must  be  set  free.  The  Supreme  Court 
affirmed  this  decision.^ 

Ill 

NEUTRALS   AND   MILITARY  PREPARATIONS 

Hall,  §§  217-218,  221-225— Lawrence,  §§  234-240— Westlake,  ii.  pp.  210-227 
—Manning,  pp.  227-244— Phillimore,  iii.  §§  142-1516— Twiss,  ii.  §§  223- 
225— Halleck,  ii.  pp.  165-185— Taylor,  §§  616,  619,  626-628— Walker, 
§§  62-66— Wharton,  iii.  §§  392,  395-396— Wheaton,  §§  436-439— Moore, 
vii.  §§  1293-1305— Heffter,  §§  148-150— Geffcken  in  Holtzendorff,  iv. 
pp.  658-660,  676-684— Ullmann,  §  191— Bonfils,  Nos.  1458-1459,  1464- 
1466— Despagnet,  Nos.  692-693— Rivier,  ii.  pp.  395-408— Calvo,  iv.  §§ 
2619-2627— Fiore,  iii.  Nos.  1551-1570— Kleen,  i.  §§  76-89,  114— 
M^rignhac,  iii".  pp.  522-547— Pillet,  pp.  288-290— Dupuis,  Nos.  322- 
331,  and  Guerre,  Nos.  290-294— LrmcZ  Warfare,  §§  472-476— Einicke, 
Rechte  unci  PJlichten  der  neutralen  Mdchte  im  Seekrieg  (1912), -pp.  71- 
153— Wehberg,  §  11. 

1  See  Garner,  ii.  §  566.  (1916),  pp.  809-831 ;  Coudert  in  A.  J., 

^  See  above,  §328.  f   ^^l ')'.??:   f^-^/^lUf^'^    ^.^^ 

'  documents  in  J.  J.,  x.  (1916),  Special 

"(1917)243  U.S.  124;  Garner,  ii.        Supplement,    pp.    387-403,    and   xi. 

§  567.     See  also  Scott  in  A.J.,  x.       (1917),  pp.  443-453. 


NEUTRALS  AND  MILITARY  PREPARATIONS  443 

§  329.  Although,   according  to   the  present  intense  Depots 
conception  of  the  duty  of  impartiaUty,  neutrals  need  tones  on 
not  ^    prohibit    their    subjects    from    supplying    belh-  5^'^^"^.*;^*!. 
gerents  with   arms  and  the  Uke  in   the  ordinary  way 
of   trade,  a  neutral  must  -  prohibit   belligerents  from 
erecting,  and  maintaining  on  his  territory,  depots  and 
factories  of  arms,  ammunition,  and  mihtary  provisions. 
However,   belligerents  can  easily  evade  this  rule  by 
not  keeping  depots  and  factories,  but  contracting  with 
subjects  of  the  neutral  concerned  in  the  ordinary  way 
of  trade  for  any  amoimt  of  arms,  ammmiition,  and 
provisions.^ 

§  330.  In  former  centuries  neutrals  were  not  required  Levy  of 
to  prevent  belligerents  from  levying  troops  on  their  ^^5°^^; 
neutral   territories;    indeed,    a   neutral   often   himself ^^i^®- 
levied  troops  on  his  territory  for  belhgerents  without 
thereby  violating  his  duty  of  impartiahty  as  understood 
in  those  times.     In  this  way  the  Swiss  Confederation 
frequently  used  to  furnish  belhgerents,  and  often  both 
parties,  with  thousands  of  recruits,  although  she  herself 
always  remained  neutral.     But  at  the  end  of  the  eight- 
eenth century  a  movement   was  started  which  tended 
to  change  this  practice.     In  1793,  President  Washington 
of  the  United  States  of  America  interdicted  the  le^^ 
of   troops  for  belhgerents  on  American  territory,  and 
by  and  by  many  other  States  followed  the  example. 
During  the  nineteenth  century,  the  majority  of  writers 
maintained  that  the  duty  of  impartiahty  must  prevent 
a  neutral  from  aUowing  the  levj^  of  troops  ;    and  the 
few  ^  \sTiters  who  differed  made  it  a  condition  that  a 
neutral,  if  he  allowed  it  at  aU,  must  allow  it  to  both 

^  See  below,  §  350.  organised   supply   in   large    propor- 

9  o     -Di     ^    i-i-  Q -"n        ]  t-1  tions,    and   the   assertion    that   the 

^  s     Bluntsehh,§//7,andKleen,       j^^^^;    ^^^^   ^^   prohibited   by   the 

^-  '  ^^  •  neutral  State,  is  not  justified.     See 

*  The  distinction  made   by  some  below,  §  350. 
writers  between  an  occasional  supply  *  See,    for   instance,    Twiss,  ii.    § 

by,,  subjects    of     neutrals    and     an  225,  and  Bluntschli,  §  762. 


444  BELLIGERENTS   AND  NEUTRALS 

belligerents  alike.  The  controversy  was  settled  by 
Articles  4  and  5  of  Hague  Convention  v.,  which  lay  down 
the  rules  that  corps  of  combatants  may  not  be  formed, 
nor  recruiting  offices  opened,  on  the  territory  of  a 
neutral  Power,  and  that  neutral  Powers  must  not 
allow  these  acts. 

The  duty  of  impartiahty  must  hkewise  prevent  a 
neutral  from  allowing  a  belhgerent  man-of-war  reduced 
in  her  crew  to  em'ol  sailors  in  his  ports,  with  the  excep- 
tion of  such  few  men  as  are  absolutely  necessary  to 
navigate  the  vessel  to  the  nearest  home  port.^ 

Akin  to  the  levy  of  troops  on  neutral  territory  was 
the  granting  of  letters  of  marque  to  vessels  belonging 
to  the  merchant  marine  of  neutrals.  Since  privateering 
has  disappeared,  the  question  whether  neutrals  must 
prohibit  their  subjects  from  accepting  letters  of  marque 
from  a  belligerent  ^  need  not  be  discussed. 
Passage  §  331.  A  ucutral  is  not  obhged  by  his  duty  of  impar- 
of  Men^^  tiahty  to  prohibit  passage  through  his  territory  of  men 
toSi."t^  who  intend  to  enhst,  whether  they  pass  singly  or  in 
numbers.  Thus,  in  1870,  Switzerland  did  not  object  to 
Frenchmen  travelhng  through  Geneva  for  the  purpose 
of  reaching  French  corps,  or  to  Germans  travelhng 
through  Basle  for  the  purpose  of  reaching  German 
corps,  under  the  condition,  however,  that  these  men 
travelled  without  arms  and  imiform.  On  the  other 
hand,  when  France  during  the  Franco-German  War 
organised  an  office  ^  in  Basle  for  the  pm^pose  of  sending 
bodies  of  Alsatian  volunteers  through  Switzerland  to 
the  south  of  France,  Switzerland  correctly  closed  it 
down  because  this  official  organisation  of  the  passage 
of   whole   bodies   of   volunteers   through   her   neutral 

^  See  Article  18  of  Convention  XIII.        of  a  neutral  who  accepts  letters  of 
and  below,  §  333  (3),  and  §  346.  marque   from  a  belligerent  may  be 

treated  as  a  pirate,  I  cannot  agree. 

^  See  above,  §  83.     With  the  asser-       See  above,  vol.  i.  §  273. 
tion  of  many  writers  that  a  subject  *  See  Bluntschli,  §  770. 


NEUTRALS   AND   MILITARY  PREPARATIONS  445 

territory    was   more   or   less    equal    to    a   passage   of 
troops. 

The  Second  Hague  Conference  sanctioned  this  dis- 
tinction, for  Article  6  of  Convention  v.  enacts  that  *  the 
responsibihty  of  a  neutral  Power  is  not  involved  by 
the  mere  fact  that  persons  cross  the  frontier  individually 
{isolement)  in  order  to  ofier  their  services  to  one  of  the 
belhgerents.'  An  argumentum  e  contrario  justifies  the 
conclusion  that  the  responsibihty  of  a  neutral  is  involved 
in  case  it  allows  men  to  cross  the  frontier  in  a  body  in 
order  to  enhst  in  the  forces  of  a  belhgerent. 

§  332.  Since  the  levy  and  passage  of  troops,  and  the  Orgamsa- 
forming  of  corps  of  combatants,  must  be  prevented  by  a  Hostne 
neutral,  a  fortiori  he  is  required  to  prevent  the  organisa-  Expedi- 
tion of  a  hostile  expedition  from  his  territory  against 
either  belhgerent.  This  takes  place  when  a  band  of  men 
combine  imder  a  commander  for  the  purpose  of  start- 
ing from  the  neutral  territory  and  joining  the  belh- 
gerent forces.  The  case,  however,  is  different  if  a 
number  of  individuals,  not  organised  into  a  body  under 
a  commander,  start  in  company  from  a  neutral  State 
for  the  purpose  of  enlisting  with  one  of  the  belhgerents. 
Thus  in  1870,  during  the  Franco-German  War,  1200 
Frenchmen  started  from  New  York  in  two  French 
steamers  for  the  purpose  of  joining  the  French  Army. 
Although  the  vessels  carried  also  96,000  rifles  and 
11,000,000  cartridges,  the  United  States  did  not  inter- 
fere, since  the  men  were  not  organised  in  a  body,  and 
the  arms  and  ammunition  were  carried  in  the  way  of 
ordinary  commerce.^ 

§  333.  Although  a  neutral  is  not  required  by  his 
duty  of  impartiahty  to  prohibit  ^  the  passage  of  belh- 
gerent men-of-war  ^  through  his  maritime  belt,  or  to 

*  See   Hall,  §  222,  and  Curtis  in        Guerre  dans  Its  Eaux  neutres  (1907). 
A.J.,  viii.  (1914),  pp.  1-37,  224-255.  *  As   regards    submarine    vessels, 

■  See    Curtius,    Des    Xavirea    de       see  below,  §  344a. 


tions 


446  BELLIGERENTS    AND    NEUTRALS 

Use  of  prohibit  the  temporary  stay  of  such  vessels  in  his  ports, 
Territory  it  is  Universally  recognised  that  he  must  not  allow 
Navar  °^  admitted  vessels  to  make  the  neutral  maritime  belt 
Opera-  and  neutral  ports  the  base  of  their  naval  operations 
against  the  enemy.  ^  Thus  Article  5  of  Hague  Conven- 
tion XIII.  enacts  that  '  belligerents  are  forbidden  to  use 
neutral  ports  and  waters  as  a  base  of  naval  operations 
against  their  adversaries.'  The  following  rules  may  be 
formulated  as  emanating  from  this  principle  : — 

(1)  A  neutral  must,  so  far  as  is  in  his  power,  prevent 
belligerent  men-of-war  ^  from  cruising  within  his  portion 
of  the  maritime  belt  for  the  purpose  of  capturing  enemy 
vessels  as  soon  as  they  leave  it.  However,  a  neutral  is 
only  required  to  do  all  that  hes  in  his  power.  It  is 
absolutely  impossible  to  prevent  such  cruising  under  all 
circumstances  and  conditions,  especially  in  the  case  of 
neutrals  who  own  possessions  in  distant  parts  of  the 
globe.  How  many  thousands  of  vessels  would  be 
necessary,  if  Great  Britain,,  for  instance,  were  uncondi- 
tionally obliged  to  prevent  such  cruising  in  every  portion 
of  the  maritime  belt  of  all  her  numerous  possessions 
scattered  over  all  parts  of  the  globe  ? 

(2)  A  neutral  must  prevent  a  belhgerent  man-of-war 

'  See    Train^,    Das   Gattrecht  im  general   principles    of    the    Law   of 

Seekrieg  (1912).  Nations.'      Without    doubt,    there- 

*  The  rules  here  laid  down  with  fore,  its  stipulations  concerning  bel- 
regard  to  men-of-war  apply  also  to  ligerent  vessels  of  war  apply  to 
vessels  assimilated  to  men-of-war,  i.  e.  auxiliary  vessels, 
vessels  used  as  transports  or  fleet  During  the  World  War  the  ques- 
auxiliaries  or  in  any  other  way  for  tion  was  much  discussed — see  Scott 
the  purpose  of  prosecuting  or  aid-  in  A.J.,  x.  (1916),  pp.  113-116, 
ing  hostilities.  It  is  true  that  the  and  Garner,  i.  §§  246-249 — whether 
relevant  articles  of  Hague  Conven-  merchantmen  of  belligerents  which 
tion  xili.  speak  only  of  '  belligerent  had  been  armed  for  defence  only, 
men-of-war,'  and  do  not  mention  were  to  be  considered  as  men-of- 
vessels  assimilated  thereto.  But  war,  and  were  therefore  to  be  denied 
paragraphs  3  and  4  of  the  preamble  the  privileges  usually  accorded  to 
state  '  that  it  is  not  possible  at  merchantmen  in  neutral  harbours, 
present  to  concert  measures  applic-  The  German  Government  con- 
able  to  all  circumstances  which  may  tended  that  they  should  ;  but  all 
arise  in  practice,' and  'that  in  cases  the  neutral  maritime  States,  with 
not  covered  by  the  present  conven-  the  exception  of  Holland,  correctly 
tion  account  must  be  taken  of  the  said  no. 


NEUTRALS   AND   MILITARY   PREPARATIONS  447 

from  leaving  a  neutral  port  at  the  same  time  as  an  enemy 
man-of-war  or  an  enemy  merchantman,  or  must  make 
other  arrangements  which  prevent  an  attack  so  soon  as 
both  reach  the  open  sea.^  Thus  Article  16  of  Hague 
Convention  xiii.  enacts  : — '  When  warships  belonging 
to  both  belhgerents  are  present  simultaneously  in  a 
neutral  port  or  roadstead,  a  period  of  not  less  than 
twenty-four  hours  must  elapse  between  the  departure 
of  the  ship  belonging  to  one  belligerent  and  the  depar- 
ture of  the  ship  belonging  to  the  other.  The  order  of 
departure  is  determined  by  the  order  of  arrival,  unless 
the  ship  which  arrived  first  is  so  circumstanced  that  an 
extension  of  its  stay  is  permissible.  A  belhgerent  war- 
ship may  not  leave  a  neutral  port  or  roadstead  until 
twenty-four  hours  after  the  departure  of  a  merchant- 
ship  flying  the  flag  of  its  adversary.' 

(3)  A  neutral  must  prevent  a  belhgerent  man-of- 
war,  whose  crew  is  reduced  from  any  cause  whatever, 
from  enrolhng  sailors  in  his  neutral  ports,  with  the 
exception  of  such  few  hands  as  are  necessary  to  navigate 
the  vessel  safely  to  the  nearest  port  of  her  home  State.^ 

(4)  A  neutral  must  prevent  belhgerent  men-of-war 
admitted  to  his  ports  or  maritime  belt  from  taking  in 
such  a  quantity  of  pro^asions  and  coal  as  would  enable 
them  to  continue  their  naval  operations,  for  otherwise 
he  would  make  it  possible  for  them  to  cruise  on  the 
open  sea  near  his  maritime  belt  for  the  purpose  of 
attacking  enemy  vessels. 

There  is,  however,  no  unanimity  among  the  Powers 
concerning  the  quantity  of  pro\dsions  and  coal  which 
belhgerent  men-of-war  may  be  allowed  to  take  in. 
Articles  19  and  20  of  Hague  Convention  xin.  enact  the 
following  : — 

Article    19 :     '  Belhgerent   warships    may   only    re- 

\  See  below,  §  347  (1). 

-  See  Article  18  of  Convention  xiii.  and  above,  §  330. 


448  BELLIGEBENTS  AND  NEUTRALS 

victual  in  neutral  ports  or  roadsteads  to  bring  up  their 
supplies  to  the  peace  standard.  Similarly  these  vessels 
may  only  ship  sufficient  fuel  to  enable  them  to  reach  the 
nearest  port  in  their  own  country.^  They  may,  on  the 
other  hand,  fill  up  their  bunkers  built  to  carry  fuel, 
when  in  neutral  countries  which  have  adopted  this 
method  of  determining  the  amount  of  fuel  to  be  supphed. 
If,  in  accordance  with  the  law  of  the  neutral  Power,  the 
ships  are  not  supphed  with  coal  within  twenty-four 
hours  of  their  arrival,  the  duration  of  their  permitted 
stay  is  extended  by  twenty-four  hours/ 

Article  20  :  '  BeUigerent  warships  which  have  shipped 
fuel  in  a  port  belonging  to  a  neutral  Power  may  not, 
within  the  succeeding  three  months,  replenish  their 
supply  in  a  port  of  the  same  Power.' 

But  Great  Britain,  which  upholds  the  rule  that  belh- 
gerent  warships  must  not  take  in  more  provisions  and 
fuel  in  neutral  ports  than  is  necessary  to  bring  them 
safely  to  the  nearest  port  of  their  own  country,  and 
Japan  and  Siam  reserved  against  Article  19,  and  Germany 
reserved  against  Article  20.  Therefore  the  matter  is 
not  settled. 

It  is  agreed,  however,  that  it  makes  no  difference 
whether  the  man-of-war  intends  to  buy  provisions  and 
coal  on  land  or  to  take  them  in  from  transport  vessels 
which  accompany  or  meet  her  in  neutral  waters. 

(5)  A  neutral  must  prevent  beUigerent  men-of-war 
admitted  into  his  ports  or  maritime  belt  from  replenish- 
ing their  ammunition  and  armaments,  and  from  adding 
to  their  armaments,  as  otherwise  he  would  indirectly 
assist  them  in  preparing  for  hostihties  (Article  18  of 

^  As  the  amount  of  fuel  necessary  great  difficulty  during  the  World 
to  enable  a  British  or  German  war-  War  in  reconciling  tliis  article  with 
vessel  in  a  Chilian  port  to  reach  the  the  obligation  to  prevent  British  or 
nearest  British  or  German  port  was  German  war-vessels  from  taking  in 
sufficient  to  enable  it  to  carry  on  such  quantities  of  coal  as  would 
hostilities  in  the  Atlantic  or  the  enable  them  to  continue  their  opera- 
Pacific  for  a  long  period,  Chili  found  tions.     See  Garner,  ii.  §  561. 


NEUTRALS   AND  MILITARY  PREPARATIONS  449 

Convention  xiii.).  It  makes  no  difference  whether  the 
ammunition  and  armaments  are  to  come  from  the  shore, 
or  are  to  be  taken  in  from  transport  vessels. 

Similarly,  although  a  neutral  may  allow  the  repair 
of  shght  damage,  he  must  prevent  belhgerent  men-of- 
war  in  his  ports  from  carrying  out  such  repairs  as  would 
add  to  their  fighting  force.  He  may  not  therefore  allow 
extensive  repairs  necessary  to  render  crippled  war- 
vessels  again  fit  for  action.  During  the  Russo-Japanese 
War  this  was  generally  recognised,  and  the  Russian 
men-of-war  AsJcold  and  Grossovoi  in  Shanghai,  the 
Diana  in  Saigon,  and  the  Lena  in  San  Francisco  had 
therefore  to  be  disarmed,  and  they  and  their  crews 
detained.  Article  17  of  Hague  Convention  xiii.  for- 
mally embodied  this  distinction  by  providing  that 
'in  neutral  ports  and  roadsteads  belhgerent  warships 
may  only  carry  out  such  repairs  as  are  absolutely 
necessary  to  render  them  seaworthy,  and  may  not 
add  in  any  mamier  whatsoever  to  their  fighting  force.' 
The  local  authorities  must  decide  what  repairs  are 
necessary,  and  such  repairs  must  be  carried  out  with 
the  least  possible  delay. 

Accordingly,  in  February  1913,  during  the  Balkan 
War,  the  Turkish  cruiser  Hamidieh  was  allowed  to 
remain  a  couple  of  days  in  the  harbour  of  Malta  to 
repair  shght  damage  caused  by  the  stress  of  weather. 
On  the  other  hand,  during  the  World  War,  the  German 
cruisers  Prinz  Eitel  Friedrich  and  Kronprinz  Wilhelm,  and 
the  German  gunboat  Geier  and  her  naval  tender  LocJcsun, 
which  entered  neutral  American  ports  for  repairs,  were 
allowed  only  a  hmited  time  within  which  to  execute  them, 
and  as  they  failed  to  depart  within  the  prescribed  period, 
they  were  interned  and  dismantled  until  the  end  of  the 
war.^  During  the  World  War  the  question  also  arose 
whether  sligJit  damage  might  be  repaired,  even  though 

1  See  Garner,  ii.  §  563  ;  A.  J.,  ix.  (1915),  p.  486;  Hall,  p.  671. 
VOL.   II.  2f 


450  BELLIGERENTS   AND  NEUTRALS 

it  was  caused,  not  by  weather,  but  by  hostile  action  in 
battle.  As  Article  17  of  Convention  xiii.  draws  no 
distinction  between  damage  by  weather  and  damage 
in  battle,  Holland  decided  to  permit  such  repairs. 

(6)  A  neutral  must  prevent  belHgerent  men-of-war 
admitted  to  his  ports  from  remaining  there  longer  than 
is  necessary  for  ordinary  and  legitimate  purposes.  It 
could  not  be  said  at  the  outbreak  of  the  World  War 
that  the  rule  adopted  in  1862  ^  by  Great  Britain,  and 
followed  by  some  other  maritime  States,  not  to  allow 
a  longer  stay  than  twenty-four  hours,  was  a  rule  of 
International  Law.  It  was  left  to  the  discretion  of 
neutrals  to  adopt  by  their  Municipal  Law  any  rule  they 
thought  fit,  so  long  as  the  admitted  men-of-war  did  not 
prolong  their  stay  for  other  than  ordinary  and  legiti- 
mate purposes.  Article  12  of  Convention  xiii.  con- 
firmed this  arrangement  by  prescribing  the  twenty-four 
hours  rule  only  for  those  neutral  countries  which  had 
not  special  provisions  to  the  contrary  in  their  Municipal 
Laws.2  l^  fact,  however,  during  the  World  War,  most, 
if  not  all,  neutral  States  adopted  the  twenty-four  hours 
rule.^ 

It  is  agreed — and  Article  14  of  Convention  xiii. 
enacts  it — that  belhgerent  men-of-war,  except  those 
for  the  time  exclusively  devoted  to  rehgious,  scientific, 
or  philanthropic  purposes,  must  not  prolong  their  stay 
in  neutral  ports  and  waters  beyond  the  time  permitted, 
except  on  account  of  damage  or  stress  of  weather.  A 
neutral  would  certainly  violate  his  duty  of  impartiahty 
if  he  were  to  allow  belhgerent  men-of-war  to  winter  in 
his  ports,  or  to  stay  there  for  the  purpose  of  waiting  for 
other  vessels  of  the  fleet  or  transports. 

^  See  Hall,  §  231.  x.  (1916),  Supplement,  pp.  121-178, 

*  Germany,  Domingo,  Siam,    and  where    the    regulations    of    several 

Persia  entered  a  reservation  against  States  governing   the   admission  of 

Article  12.  belligerent  men-of-war  to  their  ports 

»  See  Garner,  ii.  §  563,  and  A.J.,  are  collected. 


NEUTRALS   AND   MILITARY  PREPARATIONS  451 

The  rule  that  a  neutral  must  prevent  belhgerent 
men-of-war  from  staying  too  long  in  his  ports  or  waters, 
became  of  considerable  importance  during  the  Russo- 
Japanese  War,  when  the  Russian  Baltic  Fleet  was  on 
its  way  to  the  Far  East.  Admiral  Eojdestvensky  is 
said  to  have  stayed  in  the  French  territorial  waters  of 
Madagascar  from  December  1904  till  March  1905,  for 
the  purpose  of  awaiting  there  a  part  of  the  Baltic  Fleet 
that  had  set  out  at  a  later  date.  The  press  likewise 
reported  a  prolonged  stay  by  parts  of  the  Baltic  Fleet 
during  April  1905  at  Kamranh  Bay  and  Hon-kohe  Bay 
in  French  Indo-China.  If  the  reported  facts  were  true, 
France  would  seem  to  have  violated  her  duty  of  im- 
partiaHty  by  not  preventing  such  an  abuse  of  her 
neutral  ports. 

(7)  A  neutral  must  prevent  more  than  three  men-of- 
war  belonging  to  the  same  belhgerent  from  being 
simultaneously  in  one  of  his  ports  or  roadsteads  unless 
his  Municipal  Law  provides  the  contrary  (Article  15  of 
Convention  xiii.). 

(8)  Belhgerent  men-of-war  must  not  shelter  in  a 
neutral  port  for  an  undue  length  of  time  in  order  to 
escape  capture.^ 

(9)  At  the  outbreak  of  war,  a  neutral  must  warn  all 
belhgerent  men-of-war  then  in  his  ports,  roadsteads,  or 
territorial  waters,  to  depart  within  twenty-four  hours, 
or  such  other  time  as  the  local  law  prescribes  (Article  13 
of  Convention  xiii.).^ 

§  334.  AVhereas  a  neutral  is  in  no  ^  wise  obhged  by  Building 
his  duty  of  impartiahty  to  prevent  his  subjects  from  ^|J^^  ;^|^^^' 
selling  armed  vessels  to  the  belhgerents,  such  armed  of  Vessels 
vessels  being  merely  contraband  of  war,  a  neutral  is  for  Naval 
bound  to  employ  the  means  at  his  disposal  to  prevent  ^^^^' 
his  subjects  from  building,  fitting  out,  or  arming,  to  the 

*  See  below,  §  347  (4).  *  Germany  reserved  against  Article  13. 

'  See  below,  §§  350,  397. 


452  BELLIGERENTS  AND  NEUTRALS 

order  of  either  belligerent,  vessels  intended  to  be  used 
as  men-of-war,  and  to  prevent  the  departure  from  his 
jurisdiction  of  any  vessel  which,  by  order  of  either  belh- 
gerent,  has  been  adapted  to  warhke  use.^  The  differ- 
ence between  seUing  armed  vessels  to  belligerents  and 
building  them  to  order  is  usually  defined  in  the  follow- 
ing way : — 

An  armed  ship,  being  contraband  of  war,  is  in  no 
wise  different  from  other  kinds  of  contraband,  pro- 
vided that  she  is  not  manned  in  a  neutral  port,  so  that 
she  can  commit  hostihties  at  once  after  having  reached 
the  open  sea.  A  subject  of  a  neutral  who  builds  an 
armed  ship,  or  arms  a  merchantman,  not  to  the  order 
of  a  belhgerent,  but  intending  to  sell  her  to  a  belhgerent, 
does  not  differ  from  a  manufacturer  of  arms  who  intends 
to  sell  them  to  a  belhgerent.  There  is  nothing  to  prevent 
a  neutral  from  allowing  his  subjects  to  sell  armed  vessels, 
and  to  dehver  them  to  belligerents,  either  in  a  neutral 
port  or  in  a  belhgerent  port.  In  the  cases  of  The  La 
Santissima  Trinidad^  (1822)  and  The  Meteor^  (1866), 
American  courts  have  recognised  this  ;  *  and  so  did 
the  unratified  Declaration  of  London,  which  in  Article 
22  (10)  enumerated  as  absolute  contraband  '  warships, 
including  boats,  and  their  distinctive  component  parts.* 

On  the  other  hand,  if  a  subject  of  a  neutral  builds 
armed  ships  to  the  order  of  a  belhgerent,  he  prepares 
the  means  of  naval  operations,  since  the  ships,  on  sailing 
outside  the  neutral  territorial  waters  and  taking  in  a 
crew  and  ammunition,  can  at  once  commit  hostihties. 
Thus,  through  the  carrying  out  of  the  order  of  the  belh- 
gerent, the  neutral  territory  has  been  made  the  base 
of  naval  operations  ;    and  as  the  duty  of  impartiality 

^  See  Article  8  of  Convention  XIII.  pp.  411-413,   who  asserts  that  neu- 

-  7  Wheaton,  p.  340.  trals    must    prevent    their    subjects 

^  See  Balch,  201,  202  ;   Wharton,  from   selling   armed  vessels  to  bel- 

iii.  §  396,  p.  561.  ligerents.     Hershey,    p.    467,   n.    8, 

*  See  Phillimore,  iii.  §  1516,  and  would    seem    to    be    of    the    same 

Hall,  §  224 ;   but  see  also  VVehberg,  opinion. 


NEUTRALS   AND   MILITARY   PREPARATIONS  453 

includes  an  obligation  to  prevent  either  belligerent  from 
making  neutral  territory  the  base  of  military  or  naval 
operations,  a  neutral  violates  his  neutrahty  by  not  pre- 
venting his  subjects  from  carrying  out  an  order  of  a 
belligerent  for  the  building  and  fitting  out  of  men-of- 
war. 

This  distinction,  although  of  course  logically  correct, 
is  hair-sphtting.  But  as,  according  to  the  present  law, 
neutral  States  need  not  prevent  their  subjects  from 
supplying  ^  arms  and  ammunition  to  belhgerents,  it  will 
probably  continue  to  be  drawn. 

However  this  may  be,  submarines  are  in  the  same 
category  as  sm-face  vessels,  and  when,  in  1914  during 
the  World  War,  one  of  the  Alhed  Powers  ordered  a 
number  of  submarines  to  be  built  by  a  firm  in  the 
United  States,  the  American  Government  was  of 
opinion  that  they  could  not  permit  the  carrying  out  of 
the  contract.^ 

§  335.  The  movement  for  recognition  of  the  fact  that  The 
the  duty  of  impartiality  requires  a  neutral  to  prevent  case 
his  subjects  from  building  and  fitting  out  to  order  of  ^^^^^^ 
belhgerents  vessels  intended  for  naval  operations  began  Rules  of 
with   the   famous   case   of   The  Alabama.     In   1862,^  ton.^  ^"^ 
during  the  American  Civil  War,  the  attention  of  the 
British  Government  was  drawn  by  the  Government  of 
the  United  States  to  the  fact  that  a  vessel  for  warhke 
purposes  was  built  in  England  to  order  of  the  insurgents. 
This  vessel,  afterwards  called  the  Alabama,  left  Liver- 
pool in  July  1862  unarmed,  but  was  met  at  the  Azores 
by  three  other  vessels,  also  coming  from  England,  which 

'  See  below,  i;  350.  (1872)  ;    Caleb   Gushing,    Le    TraiU 

*  See  A.J.,  ix.  (1915),  pp.  177-187.  de  Washingtm  (1874) ;  Bluntschli  in 

'  For  details,  see  Mountague  Ber-  R.I.,  ii.  (1870),  pp.  452-485  ;  Balch, 

nard,    Neutradity   of   Great   Britain  The,   Alabama    Question   (1900)  and 

during    the    American    Civil      ]Var  L' J^volution   de  I' Arbitrage   intema- 

(1870),  pp.   338-496;   Geffcken,  Die  tional  (1908),  pp.   43-70;    Westlake 

Alabanux    Frage    (1872) ;     Pradier-  in  the  Cambridge  Modem  History, 

rod6r6,   La   Qiieilion  de  U Alabama  xii.  pp.  16-22. 


454  BELLIGEEEISTTS  AND  NEUTRALS 

supplied  her  with  guns  and  ammunition,  so  that  she 
could  at  once  begin  to  prey  upon  the  merchantmen  of 
the  United  States.  On  the  conclusion  of  the  Civil  War, 
the  United  States  claimed  damages  from  Great  Britain 
for  the  losses  sustained  by  her  merchant  marine  through 
the  operations  of  the  Alabama  and  other  vessels  hke- 
wise  built  in  England.  Negotiations  went  on  for 
several  years,  and  finally  on  May  8,  1871,  the  parties 
entered  into  the  Treaty  of  Washington  ^  for  the  purpose 
of  having  their  difference  settled  by  arbitration,  Great 
Britain,  the  United  States,  Brazil,  Italy,  and  Switzer- 
land each  choosing  one  arbitrator.  The  treaty  con- 
tained three  rules,  since  then  known  as  '  The  Three 
Rules  of  Washington,"  to  be  binding  upon  the  arbitrators, 
namely  :  ^ —  '  A  neutral  Government  is  bound — 

'  Firstly.  To  use  due  dihgence  to  prevent  the  fitting 
out,  arming,  or  equipping  within  its  jurisdiction,  of 
any  vessel  which  it  has  reasonable  ground  to  believe 
is  intended  to  cruise  or  carry  on  war  against  a  Power 
with  which  it  is  at  peace,  and  also  to  use  hke  dihgence 
to  prevent  the  departure  from  its  jurisdiction  of  any 
vessel  intended  to  cruise  or  carry  on  war  as  above, 
such  vessel  having  been  specially  adapted  in  whole  or 
in  part,  within  such  jurisdiction,  to  warhke  use. 

'  Secondly.  Not  to  permit  or  sufier  either  belhgerent 
to  make  use  of  its  ports  or  waters  as  the  base  of  naval 
operations  against  the  other,  or  for  the  purpose  of  the 
renewal  or  augmentation  of  mihtary  supphes  or  arms, 
or  the  recruitment  of  men. 

*  Thirdly.  To  exercise  due  dihgence  in  its  own  ports 
and  waters,  and  as  to  all  persons  within  its  jurisdiction, 
to  prevent  any  violations  of  the  foregoing  obhgations 
and  duties.' 

In  consenting  that  these  rules  should  be  binding  upon 
the  arbitrators.  Great  Britain   expressly  declared  that 

*  Martens,  N.R.G.,  xx.  p.  698.  *  See  Moore,  vii.  §  1330. 


NEUTRALS    AND   MILITARY    PREPARATIONS         455 

in  her  view  these  rules  were  not  recognised  rules  of 
International  Law  at  the  time  when  the  case  of  The 
Alabama  occurred,  but  the  treaty  contained  a  stipula- 
tion that  the  parties  '  agree  to  observe  these  rules  as 
between  themselves  in  future,  and  to  bring  them  to 
the  knowledge  of  other  maritime  Powers,  and  to  invite 
them  to  accede  to  them.' 

The  arbitrators  ^  met  at  Geneva  in  1871,  held  thirty- 
two  conferences  there,  and  gave  their  decision  ^  on 
September  14,  1872,  according  to  which  England  had 
to  pay  15,500,000  dollars  damages  to  the  United  States. 

The  arbitrators  put  a  construction  upon  the  term 
*  due  diligence '  ^  and  asserted  other  opinions  in  their 
decision  which  are  very  much  contested,  and  to  which 
Great  Britain  never  consented.  Though  Great  Britain 
and  the  United  States  agreed  upon  the  three  rules,  they 
did  not  at  all  agree  upon  their  interpretation,  and  could 
not  agree  upon  the  contents  of  the  communication  to 
other  maritime  States  stipulated  by  the  Treaty  of 
Washington.  It  ought  not,  therefore,  to  be  said  that 
the  Three  Rules  of  Washington  *  have  hterally  become 
universal  rules  of  International  Law.  Nevertheless, 
they  were  the  starting-point  of  the  movement  for  the 
universal  recognition  of  the  fact  that  the  duty  of  im- 
partiality obhges  neutrals  to  prevent  their  subjects 
from  building  and  fitting  out,  to  order  of  belhgerents, 
vessels  intended  for  warhke  purposes,  and  to  prevent 
the  departure  from  their  jurisdiction  of  any  vessel, 
which,  by  order  of  a  belhgerent,  has  been  adapted  to 
warhke  use.  Article  8  of  Hague  Convention  xiii.  copies 
almost  verbally  the  first  of  the  Three  Rules  of  Wash- 
ington, but  with  the  important  difference  that  it  re- 

1  See  Moore,  Arbitrations,  i.  pp.  *  As     regards     the     seven     rules 

495-682.  adopted  by  the  Institute  of  Inter- 

*  The  award  is  printed  in  full  in  national  Law,  at  its  meeting  at  the 

Moore,  Arhilrations,  i.  pp.  653-659,  Hague  in  1875,  as  emanating  from 

and  in  Phillimore,  iii.  §  151a.  the  Three  Rules  of  Washington,  see 

»  See  below,  §  363.  Annuaire,  i.  (1877),  p.  139. 


456  BELLIGERENTS   AND  NEUTRALS 

places  the  words  '  to  use  due  diligence  '  by  '  to  employ 
the  means  at  its  disposal/  For  this  reason  the  con- 
struction put  by  the  Geneva  arbitrators  upon  the  term 
due  diligence  is  not  apphcable  to  Article  8,  the  question 
whether  a  neutral  employed  the  means  at  his  disposal 
being  a  mere  question  of  fact. 


IV 

NEUTRAL  ASYLUM  TO   LAND   FORCES,   WAR  MATERIAL 
AND   AIRMEN 

Vattel,  iii.  §§  132-133— Hall,  §§  226,  230— Halleck,  ii.  p.  150— Taylor,  §  621 
—Wharton,  iii.  §  394— Moore,  vii.  §§  1314-1318— Bluntschli,  §§  774, 
776-776a,  785— Heffter,  §  149— Geffcken  in  Holtzendorff,  iv.  pp.  662- 
665— Ullmann,  §  191— Bonfils,  Nos.  1461-1462— Rivier,  ii.  pp.  395-398— 
Calvo,  iv.  §§  2668-2669— Fiore,  iii.  Nos.  1576,  1582,  1583— Martens,  ii. 
§  133— M^rignhac,  iii".  pp.  577-586— Fillet,  pp.  286-287— Kleen,  ii.  §§ 
151-157— Holland,  War,  Nos.  131-133— Zorn,  pp.  316-352— Heilborn, 
Rechte,  pp.  12-83— Garner,  i.  §§  301-307— Z^and  Warfare,  §§485-501— 
Rolin-Jaequemyns  in  R.I.,  iii.  (1871),  pp.  352-366. 

On  §  336.  Neutral  territory,  being  outside  the  region  of 

Neutral    war,^  offers  an  asylum  to  members  of  belhgerent  forces. 

Asylum  in  .  -^  .  ^  . 

general,  to  the  subjccts  of  the  belKgereuts  and  their  property, 
and  to  war  material  belonging  to  the  belhgerents. 
Since,  according  to  the  present  rules  of  International 
Law,  the  duty  of  either  belhgerent  to  treat  neutrals 
according  to  their  impartiahty  must — the  case  of 
extreme  necessity  in  self-defence  excepted — prevent 
them  from  violating  the  territorial  supremacy  of  neutrals, 
enemy  persons  and  goods  are  perfectly  safe  on  neutral 
territory.  It  is  true  that  neither  belhgerent  has  a  right 
to  demand  from  a  neutral  ^  such  asylum  for  his  subjects, 
their  property,  and  his  State  property.  But  neither 
has  he  any  right  to  demand  that  a  neutral  should  refuse 

*  See  above,  §§  70,  71.  hospitality  in  his  ports  to  vessels  of 

*  The  generally  recognised  usage       either  belligerent   in  distress  is  an 
by  which  a  neutral  grants  temporary       exception  discussed  below  in  §  344. 


ASYLUM  TO   LAND   FORCES   AND   WAR  MATERIAL      457 

it  to  the  enemy.  The  territorial  supremacy  of  the 
neutral  enables  him  to  use  his  discretion  in  granting 
or  refusing  asylum.  However,  his  duty  of  impartiality 
must  compel  him,  if  he  grants  it,  to  take  all  such  measures 
as  are  necessary  to  prevent  his  territory  from  being 
used  as  a  base  of  hostile  operations. 

Now,  neutral  territory  may  be  an  asylum  (1)  for  private 
property,  (2)  for  pubhc  enemy  property,  especially  war 
material,  cash,  and  provisions,  (3)  for  private  subjects  of 
the  enemy,  (4)  for  enemy  land  forces,  (5)  for  enemy  air- 
men, and  (6)  for  enemy  naval  forces.  Details,  however, 
need  only  be  given  with  regard  to  asylum  to  land  forces, 
war  material  ^  and  airmen,  and  to  naval  forces.^  For  with 
regard  to  private  property  and  private  subjects  it  need 
only  be  mentioned  that  private  war  material  brought  into 
neutral  territory  stands  on  the  same  footing  as  pubhc 
war  material  of  a  belHgerent  brought  there,  and,  further, 
that  private  enemy  subjects  are  safe  on  neutral  terri- 
tory even  if  they  are  claimed  by  a  belhgerent  as  having 
committed  war  crimes. 

As  regards  asylum  to  land  forces,  a  distinction  must 
be  made  between  (1)  prisoners  of  war,  (2)  single  fugi- 
tive soldiers,  and  (3)  troops,  or  whole  armies,  pursued 
by  the  enemy,  and  thereby  induced  to  take  refuge  on 
neutral  territory. 

§  337.  Neutral  territory  is  an  asylum  to  prisoners  Neutral 
of  war  of  either  belHgerent ;    they  become  free  ^  ifso  Jn5"*°^^ 
Jacto  by  coming  into  neutral  territory,  whether  they  Prisoners 
have  escaped  from  a  place  of  detention  and  taken  refuge 
on  neutral  territory,  or  whether  they  are  brought  as 

^  §§  337-341.  ^vent  over  and  dragged  him  back  to 

-  §§  342-348.  German  territorj',   Germany  apolo- 

'  Thus  when,  in  November  1917,  gised   for   the   violation   of    Danish 

a  Russian  prisoner  who  had  escaped  territorj',    and    declared     that    she 

from    a    German    prison    camp    in  would  not  have  hesitated  to  transfer 

Schleswig  was  shot  before  reaching  the  prisoner  to  the  Danish  authori- 

the  Danish  frontier  but  succeeded  in  ties  if  he  had  not  meanwhile  died, 

crossing  it,  and  two  German  soldiers  See  The  Times,  February  16,  1917. 


458  BELLIGERENTS   AND  NEUTRALS 

prisoners  into  neutral  territory  by  enemy  troops  who 
themselves  take  refuge  there.^  This  principle  has  been 
generally  recognised  for  centuries.  An  illustration 
occurred  in  1588,  when  several  Turkish  and  Barbary 
captives  escaped  from  one  of  the  galleys  of  the  Spanish 
Armada  which  was  wrecked  near  Calais  ;  although  the 
Spanish  ambassador  claimed  them,  France  considered 
them  to  be  freed  by  coming  on  her  territory,  and  sent 
them  to  Constantinople.^  But  has  the  neutral  on  whose 
territory  a  prisoner  has  taken  refuge  the  duty  to  retain 
him  and  thereby  prevent  him  from  rejoining  his  own 
army  ?  Formerly  this  question  was  not  settled.  In 
1870,  during  the  Franco-German  War,  Belgium  beheved 
that  it  had  such  a  duty,  and  detained  a  French  non- 
commissioned officer  who  had  been  a  prisoner  in  Germany 
and  had  escaped  into  Belgian  territory  with  the  inten- 
tion of  rejoining  the  French  forces  at  once.  Doubts 
were  expressed  upon  this  case  ;  ^  but  all  writers  agreed 
that  it  was  different  if  escaped  prisoners  wanted  to 
remain  on  the  neutral  territory  ;  as  they  might  at  any 
subsequent  time  wish  to  rejoin  their  own  forces,  the 
neutral  was  considered  to  be  obhged  by  his  duty  of 
impartiality  to  take  adequate  measures  to  prevent  their 
so  doing.  There  was  likewise  no  unanimity  as  to 
whether  prisoners  brought  into  neutral  territory  by 
enemy  forces  taking  refuge  there,  could  be  detained  in 
case  they  intended  at  once  to  leave  the  neutral  territory. 
Some  writers  *  maintained  that  they  could  not ;  others 
asserted  that  they  might  always  be  detained,  and  had  to 
comply  with  such  measures  as  the  neutral  considered 
necessary  to  prevent  them  from  rejoining  their  forces.^ 

^  The  case  of  prisoners  on  board  a  Heilborn,  Bechte,  pp.  32-34. 

belligerent  man-of-war  which  enters  *  For  instance,  Heilborn,  Rechte, 

a  neutral  port  is  diti'erent ;    see  be-  pp.  51-52. 

low,  §  345.  ^  See    Sauser-Hall   in   R.G.,   xix. 

*  See  Hall,  §  226.  (1912),  pp.   40-57,  where  this  case, 

^  See  Rolin-Jaequemyns  in  R.I.,  and  the  cases  previously  mentioned, 

iii.  (1871),  p.  355  ;  Bluntschli,  §  776  ;  are  discussed. 


ASYLUM  TO   LAND   FORCES   AND  WAR   MATERLVL      459 

Aiticle  13  of  Hague  Convention  v.  settled  the  con- 
troversy by  enacting  that  a  neutral  who  receives  prisoners 
of  war  who  have  escaped,  or  who  are  brought  there  by 
troops  of  the  enemy  taldng  refuge  on  neutral  territory, 
shall  leave  them  at  hberty,  but  that,  if  he  allows  them 
to  remain  on  his  territory,  he  may — he  need  not ! — 
assign  them  a  place  of  residence  so  as  to  prevent  them 
from  rejoining  their  forces.  Since,  therefore,  every- 
thing is  left  to  the  discretion  of  the  neutral,  he  has  to 
take  into  account  the  merits  and  needs  of  every  case 
and  to  take  such  steps  as  he  thinks  adequate  ;  a  beUi- 
gerent  certainly  cannot,  as  of  right,  call  upon  the  neutral 
to  detain  them. 

The  case  of  unwounded  prisoners  w^ho,  with  the 
consent  of  the  neutral,  are  transported  through  neutral 
territory  is  different.  Such  prisoners  do  not  become 
free  on  entering  the  neutral  territory  ;  but  there  is  no 
doubt  that  a  neutral,  by  consenting  to  the  transport, 
\'iolates  his  duty  of  impartiahty,  because  it  is  equivalent 
to  passage  of  troops  through  neutral  territory  (Article  2 
of  Convention  v.).  \ 

Difierent  again  is  the  case  where  enemy  soldiers  are 
amongst  the  woimded  whom  a  belhgerent  is  allowed  by 
a  neutral  to  transport  through  neutral  territory.  Such 
wounded  prisoners  become  free,  but  they  must,  accord- 
ing to  Article  14  of  Convention  v.,  be  guarded  by  the 
neutral,  so  as  to  ensure  that  they  do  not  again  take  part 
in  mihtary  operations.^ 

§  338.  A  neutral  may  grant  asylum  to  single  soldiers  Fugitive 
of  belHgerents  who  take  refuge  on  his  territory,  although  ^°^^'^^ 
he  need  not  do  so,  but  may  at  once  send  them  back,  sert^rson 
If   he   grants  such   asylum,   his  duty  of  impartiahty  Territory. 
obhges  him  to  disarm  them,  and  to  take  such  measures 
as  are  necessary  to  prevent  them  from  rejoining  their 
forces.     But  it  is  in  practice  impossible  for  a  neutral  to 

^  See  also  Article  15  of  Convention  x.  and  below,  §  348a. 


460  BELLIGERENTS   AND  NEUTRALS 

be  so  watchful  as  to  detect  every  single  fugitive  who 
enters  his  territory.  It  will  always  happen  that  such 
fugitives  steal  into  neutral  territory  and  leave  it  again 
later  on  to  rejoin  their  forces  without  the  neutral  being 
responsible.  Moreover,  before  he  can  incur  responsi- 
bihty  for  not  doing  so,  a  neutral  must  actually  be  in  a 
position  to  detain  such  fugitives.  Thus  Luxemburg, 
during  the  Franco-German  War,  could  not  prevent 
hundreds  of  French  soldiers,  who  fled  into  her  territory 
after  the  capitulation  of  Metz,  from  rejoining  the  French 
forces,  because  it  was  a  condition  ^  of  her  neutrahsa- 
tion  that  she  should  not  keep  an  army,  and  therefore, 
in  contradistinction  to  Switzerland,  was  unable  to 
mobihse  troops  for  the  purpose  of  fulfilhng  her  duty 
of  impartiahty. 

Different  from  the  case  of  fugitive  soldiers  is  the  case 
of  fugitive  deserters.  If  they  desert  and  cross  the 
neutral  territory  for  the  purpose  of  joining  the  enemy, 
their  case  is  hardly  different  from  the  case  of  men  who 
pass  through  neutral  territory,  intending  to  enhst  in 
the  army  of  a  belhgerent.^  For  this  reason  they  need 
not  be  interned  if  they  come  individually ;  but  they 
must  be  interned  if  they  come  in  a  body.  On  the  other 
hand,  if  they  desert  without  any  such  intention,  they 
need  not  be  interned,  even  though  they  come  in  a  body. 
Neutral  §  339.  On  occasious  during  war  large  bodies  of  troops, 
and"^°'^^  or  even  a  whole  army,  are  obhged  to  cross  the  neutral 
Fugitive  frontier  for  the  purpose  of  escaping  captivity.  A 
neutral  need  not  permit  this,  and  may  repulse  them  on 
the  spot ;  but  he  may  also  grant  asylum.  It  is,  how- 
ever, obvious  that  the  presence  of  such  troops  on  neutral 
territory  is  a  danger  to  the  other  party.  The  duty  of 
impartiahty  incumbent  upon  a  neutral  obhges  him,  there- 
fore, to  disarm  them  at  once,  and  to  guard  them  so  as  to 
ensure  that  they  do  not   again  perform  mihtary  acts 

»  See  above,  vol.  i.  §  100.  *  See  above,  §  331. 


ASYLUM  TO   LAND   FORCES   AND  WAR  MATERIAL      461 

against  the  enemy  during  the  war.  In  this  case  Hague 
Convention  v.  enacts  the  following  rules  : — 

Article  11  :  'A  neutral  Power  which  receives  in  its 
territory  troops  belonging  to  the  belhgerent  armies 
shall  detain  them,  if  possible,  at  some  distance  from 
the  theatre  of  war.  It  may  keep  them  in  camps,  and 
even  confine  them  in  fortresses  or  localities  assigned  for 
the  purpose.  It  shall  decide  whether  officers  are  to  be 
left  at  hberty  on  giving  their  parole  that  they  will  not 
leave  the  neutral  territory  without  authorisation." 

Article  12  :  'In  the  absence  of  a  special  convention, 
the  neutral  Power  shall  supply  the  interned  with  the 
food,  clothing,  and  rchef  which  the  dictates  of  humanity 
prescribe.  At  the  conclusion  of  peace,  the  expenses 
caused  by  internment  shall  be  made  good.' 

It  is  usual  for  troops  who  are  not  actually  pursued 
by  the  enemy — if  pursued  they  have  no  time  to  do  it — 
to  enter  through  their  commander  into  a  convention 
with  the  representative  of  the  neutral  concerned,  stipu- 
lating the  conditions  upon  which  they  cross  the  frontier 
and  give  themselves  into  his  custody.  Such  conven- 
tions are  vahd  without  ratification,  provided  that  they 
contain  only  such  stipulations  as  do  not  disagree  with 
International  Law,  and  concern  only  the  requirements 
of  the  case. 

Although  the  detained  troops  are  not  prisoners  of 
war  captured  by  the  neutral,  they  are  nevertheless  in 
his  custody,  and  therefore  under  his  disciphnary  power, 
just  as  prisoners  of  war  are  under  the  disciphnary  power 
of  the  State  which  keeps  them  in  captivity.  They  do 
not  enjoy  the  exterritoriahty  ^  due  to  armed  forces 
abroad,  because  they  are  disarmed.  As  the  neutral  is 
required  to  prevent  them  from  escaping,  he  must  apply 
stern  measures,  and  he  may  pimish  severely  every 
member  of  the  detained  force  who  attempts  to  frus- 

^  See  above,  vol.  i.  §  445. 


462  BELLIGEKENTS   AND  NEUTRALS 

trate  such  measures,  or  does  not  comply  with  the  dis- 
cipHnary  rules  regarding  order,  sanitation,  and  the 
Hke. 

The  most  remarkable  instance  known  in  history  is 
the  asylum  granted  by  Switzerland  during  the  Franco- 
German  War  to  a  French  army  of  about  82,000  men 
with  10,000  horses,  which  crossed  the  frontier  on 
February  1,  1871.^  France  had,  after  the  conclusion 
of  the  war,  to  pay  about  eleven  milHon  francs  for  the 
maintenance  of  this  army  in  Switzerland  during  the 
rest  of  the  war. 

Other  instances   occurred   during   the   World   War, 
when  after  the  fall  of  Antwerp  in  1914  Holland  in- 
terned British  troops  which  crossed  into  Holland,  south 
of  the  River  Scheldt,  to  escape  the  German  Army,^ 
and  when  the  local  authorities  in  Spanish  New  Guinea 
interned  900  Germans  and  14,000  natives  who  crossed 
the  Spanish  frontier  from  German  Cameroon.^ 
Neutral        §  340.  The  duty  of  impartiahty  incumbent  upon  a 
Ind"^""^^  neutral  obhges  him  to  detain  in  the  same  way  as  soldiers 
non-Com-  nou-combataut  ■*   members   of    belhgerent   forces   who 
Members  cross  his  frontier.     He  may  not,  however,  detain  army 
gerent^"    surgcous  and  other  non-combatants  who  are  privileged 
Forces,     accordiug  to  Article  9  of  the  Geneva  Convention.^ 
Neutral        §  341.  It  cau  happen  during  war  that  war  material 
an^Waf  belonging  to  one  of  the  beUigerents  is  brought  into 
Material   ncutral  territory  for  the   purpose   of  saving  it  from 

of  Belli-  -  ,       -^  X,  1       1  1.1. 

gerents.  Capture  by  the  enemy.  It  may  be  brought  by  troops 
crossing  the  neutral  frontier  to  evade  captivity,  or  it 
may  be  purposely  sent  there  by  order  of  a  commander. 
Now,  a  neutral  is  by  no  means  obhged  to  admit  such 
material,  just  as  he  is  not  obliged  to  admit  soldiers  of 

*  See    the    convention    regarding  *  The  Times,  February  7,  1916. 

this    asylum     between     the     Swiss  4  „      -a  ■^^            d    7,,             ai  *a 

General    Herzog    and    the    French  *  See  Heilborn    i?ecAfe    pp.  43-46. 

General     Clinchant     in      Martens.  Convention    v.    does    not    mention 

N.R.O.,  xix.  p.  639.  '^^^^• 

^  The  Times,  October  11,  1914.  *  See  above,  §  121, 


ASYLUM  TO  LAND  FORCES   AND   WAR  MATERIAL      463 

belRgerents.  But  if  he  does,  his  duty  of  impartiahty 
obhges  him  to  seize  and  retain  it  till  after  the  conclu- 
sion of  peace.  War  material  includes  arms,  ammuni- 
tion, provisions,  horses,  means  of  mihtary  transport 
(such  as  carts  and  the  hke),  and  everything  else  that 
belongs  to  the  equipment  of  troops.  But  means  of 
mihtary  transport  are  war  material  only  so  far  as  they 
are  the  property  of  a  belhgerent.  If  they  are  hired,  or 
requisitioned,  from  private  individuals,  they  may  not 
be  detained  by  the  neutral. 

It  can  hkewise  happen  during  war  that  war  material 
which  was  originally  the  property  of  one  of  the  belh- 
gerents  but  later  had  been  seized  and  appropriated  by 
the  enemy,  is  brought  by  the  latter  into  neutral  terri- 
tory. Does  such  material,  through  coming  into  neutral 
territory,  become  free,  and  must  it  be  restored  to  its 
original  owner  ?  Or  must  it  be  retained  by  the  neutral, 
and  after  the  war  be  restored  to  the  belhgerent  who 
brought  it  into  the  neutral  territory  ?  In  analogy  with 
prisoners  of  war  who  become  free  through  being  brought 
into  neutral  territory,  it  is  maintained  ^  that  such  war 
material  becomes  free,  and  must  be  restored  to  its 
original  owner.  To  this,  however,  I  cannot  agree.^ 
Since  war  material  through  seizure  by  the  enemy 
becomes  his  property,  and  remains  his  property  unless 
the  other  party  re-seizes  and  thereby  re-appropriates 
it,  there  is  no  reason  for  it  to  revert  to  its  original  owner 
upon  being  brought  into  neutral  territory.^ 

§  341«.  No  customary  or  conventional  rules  as  yet 

*  See  Hall,  §  226.  p.    145 — this  proposal   was   not  ac- 

*  See  Heilborn,  Bechte,  p.  60,  and       cepted. 

Land   War/are,  §  492.     The  Dutch  ^  See  Heilborn,  Bechte,  pp.  61-G5, 

Government  at  the    Second   Hague  where  the  question  is  discussed  as  to 

Conference  proposed  a  rule  accord-  whether  a  neutral  may  claim  a  lien 

ing  to  which  captured  war  material  on   war   material   brought  into    his 

brought  by  the  captor  into  neutral  territory  for  expenses   incurred  for 

territory  should  be  restored,   after  the  maintenance  of  detained  troops 

the  war,  to  its  original  owner,  but —  belonging  to  the  owner  of  the  war 

see  Dewcitme  Conference,  Actes,  vol.  i.  material, 


464 


BELLIGERENTS   AND  NEUTRALS 


Neutral 

Territory 

and 

BelH- 

gerent 

Airmen. 


exist  for  the  case  in  which  a  belhgerent  air-vessel 
crosses  into  neutral  air  space,  be  it  inadvertently  or 
intentionally,  and  is  compelled  to  land.  During  the 
World  War  the  general  practice  of  neutrals  seems  to 
have  been  always  to  detain  the  air-vessel  and  the  air- 
men. Moreover,  when  belligerent  aircraft  passed  over 
neutral  territory  without  intending  to  land,  they  were 
fired  at  for  the  purpose  of  compelhng  them  to  do  so.^ 
But  in  case  they  came  down,  not  on  neutral  territory, 
but  on  the  open  sea,  and  their  crews  were  there  rescued 
by  neutral  merchantmen  and  so  brought  into  neutral 
territory,  they  were  treated  as  shipwrecked  soldiers, 
and  were  not  detained.^ 


V 


NEUTRAL   ASYLUM   TO   NAVAL   FORCES   AND   SHIP- 
WRECKED  WAR  MATERIAL 


Asylum 
to  Naval 
Forces  in 
contra- 
distinc- 
tion to 
Asylum 
to  Land 
Forces. 


Vattel,  iii.  §  132— Hall,  §  231— Westlake,  ii.  pp.  234-242— Twiss,  ii.  §  222— 
Taylor,  §§  635,  636,  640— Wharton,  iii.  §  394— Wheaton,  §  434— Moore, 
vii.  §§  1314-1317— Bluntsehli,  §§  775-7766— Heflfter,  §  149— Geffcken  in 
Hohzendorff,  iv.  pp.  665-667,  674— Ullmann,  §  191— Bonfils,  No.  1463— 
Despagnet,  No.  692  <er— Rivier,  ii.  p.  405— Calvo,  iv.  §§  2669-2684— Fiore, 
iii.  Nos.  1576-1581,  1584,  and  Code,  Nos.  1811-1815— Martens,  ii.  §  133 
— Kleen,  ii.  §  155— Fillet,  pp.  305-307— Perels,  §  39,  p.  213— Testa,  pp. 
173-187— Dupuis,  Nos.  308-314,  and  Guerre,  Nos.  304-328— Ortolan,  ii. 
pp.  247-291— Hautefeuille,  i.  pp.  344-405— Takahashi,  pp.  418-484— 
Garner,  ii.  §§  561-564 — Train6,  Das  Gastrecht  im  Seekrieg  (1912),  §§  14- 
20 — Einicke,  Rechte  und  PJlichten  der  neulralen  Mdchte  im  Seekrieg  (1912), 
pp.  153-325 — Pepy,  Les  Problemes  scndeves  parl'Asile  maritime  en  Temps 
de  Guerre  (1913),  and  in  E.G.,  xx.  (1913),  pp.  574-599— Wehberg,  §  11 
— Bajer  in  R.I.,  2nd  Ser.  ii.  (1900),  pp.  242-247— Lapradelle  in  E.G., 
xi.  (1904),  pp.  531-564. 

§  342.  Whereas  it  is  a  condition  of  the  granting  of 
asylum  by  a  neutral  to  land  forces,  and  single  members 
of  them,  that  he  should  disarm  them  and  detain  them 
for  the  purpose  of  preventing  them  from  joining  in 
further  mihtary  operations,  a  neutral  may  grant  tem- 

^JSee  the  details  given  by  Garner,  i.  §§  301-303. 
*|See  below,  §  348a. 


NEUTRAL   ASYLUM   TO   NAVAL   FORCES  465 

porary  asylum  to  men-of-war  of  ^  belligerents,  without 
being  obliged  to  disarm  and  detain  them.^  This  is  so, 
whether  belligerent  men-of-war  seek  neutral  asylum 
because  they  are  chased  into  neutral  waters  by  the 
enemy  ^  or  from  other  causes.  The  reason  is  that  the 
sea  is  considered  to  be  an  international  highway,  that 
the  ports  of  all  nations  serve  more  or  less  the  interests 
of  international  traffic  on  the  sea,  and  that  the  condi- 
tions of  navigation  make  it  necessary  to  extend  a  certain 
hospitahty  in  ports  to  vessels  of  all  nations.  Thus  the 
rules  of  International  Law  regarding  asylum  in  neutral 
ports  to  men-of-war  of  belhgerents  have  developed  on 
somewhat  different  hues  from  the  rules  regarding  asylum 
to  land  forces.  But  the  rule,  that  the  duty  of  imparti- 
ahty  incumbent  upon  a  neutral  must  prevent  him  from 
allowing  belhgerents  to  use  his  territory  as  a  base  of 
operations  of  war,  is  nevertheless  vahd  regarding  asylum 
granted  to  their  men-of-w^ar. 

§  343.  Although    a    neutral    may    grant    asylum    to  Neutral 
belhgerent  men-of-war  in  his  ports,  he  has  no  duty  to  ^^Na™i 
do   so.     He   may   prohibit   all   belhgerent  men-of-war  forces 

.  .  r  1  •  111  optional. 

irom  entenng  any  oi  his  ports,  whether  these  vessels  are 
pursued  by  the  enemy,  or  desire  to  enter  for  other 
reasons.  However,  his  duty  of  impartiaUty  must 
prevent  him  from  denying  to  one  party  what  he  grants 
to  the  other ;  he  may  not,  therefore,  allow  men-of-war 
of  one  belhgerent  to  enter  his  ports  and  exclude  men-of- 
war  of  the  other  belhgerent  (Article  9  of  Convention  xiii.). 
Neutrals,  as  a  rule,  admit  men-of-war  of  both  parties, 
often,  however,  excluding  them  from  certain  ports. 
Thus,  during  the  Crimean  War,  Austria  prohibited  all 
belhgerent  men-of-war  from  entering  the  port  of  Cattaro. 

^  What  is  here  said  with  regard  cerning  the  abuse  of  asylum,  which 

to  neutral  asj'lum  to  men-of-war  of  must  be  prohibited, 

belligerents  applies  also  to  such  of  *  But  this  is  not  universally  ad- 

their  vessels  as   are  assimilated   to  mitted  ;  see,  for  instance,  Kleen,  ii. 

men-of-war  ;  see  above,  §  333.  pp.  29-31.     The  point  has  not  been 

-  See,  however,  below,  §  347,  con-  settled  by  Convention  xin. 

VOL.   H.  2g 


466  BELLIGERENTS   AND   NEUTRALS 

Thus,  further,  Great  Britain  during  the  American  Civil 
War  closed  to  all  beUigerent  men-of-war  the  ports  of 
the  Bahama  Islands,  stress  of  weather  excepted. 

Be  that  as  it  may,  since  a  neutral  must  prevent  belh- 
gerents  from  making  his  territory  the  base  of  mihtary 
operations,  he  must  not,  as  has  already  been  explained,^ 
allow  an  unhmited  number  of  men-of-war  belonging  to 
one  of  the  belligerents  to  stay  simultaneously  in  one  of 
his  ports. 
Asylum        §  344.  To  the  rule  that  a  neutral  need  not  admit  men- 
FoSnli  of-war  of  the  belligerents  to  his  ports  there  is  no  excep- 
Distress.    ^[qj^  [^^  strict  law.     Howcvcr,  there  is  an  international 
usage  that  belligerent  men-of-war  in   distress  should 
never  be  prevented  from  making  for  the  nearest  port. 
In  accordance  with  this  usage,  vessels  in  distress  have 
always  been  allowed  to  enter  even  such  neutral  ports 
as   are   closed   to   belligerent   men-of-war.     There   are 
even   instances    known   of    belHgerent   men-of-war   in 
distress  having  asked  for,  and  been  granted,  asylum 
by  the  enemy  in  an  enemy  port.^ 
Asylum        §  344(2.  During  the  World  War  the  question  arose 
to  Sub-     whether  submarine  vessels  forming  part  of  the  beUi- 

manne  *-"    ^ 

Vessels,  gerciit  forccs  should  have  the  same  status  as  other  men- 
of-war,  and  therefore  be  granted  temporary  asylum  in 
neutral  ports.  In  August  1916  the  Alhes  proposed  to 
neutral  Powers  that  no  asylum  should  be  granted  to 
belhgerent  submarine  vessels  of  any  description.  They 
argued^ that  in  their  case  the  apphcation  of  the  principles 
of  the  Law  of  Nations  was  afiected  by  special  and  novel 
conditions :  (1)  submarines  could  navigate  and  remain  at 
sea  submerged,  and  thus  escape  all  control  and  observa- 
tion ;  (2)  it  was  impossible  to  identify  them  and  to 
estabhsh  their  national  character,  whether  neutral  or 

1  See  above,  §  333  (7).  (1916),   Cd.    8349.      See   Reeves   in 

2  See  above,  §  189.  A.J.,  xi.   (1917),  p.   147,  and  Hall, 
^  Pari.    Papers,    Misc.,    No.    33       §  231a. 


NEUTRAL  ASYLUM   TO   NAVAL  FORCES  467 

belligerent,  combatant  or  non-combatant,  and  to  remove 
the  capacity  for  harm  inherent  in  their  natui'e  ;  (3)  any 
place  which  provided  a  submarine  war-vessel  far  from 
its  base  with  opportunity  for  rest  and  re^^lenishment  of 
its  supphes  thereby  furnished  such  an  addition  to  its 
powers  that  the  place  became  in  fact,  through  the 
advantages  it  gave,  a  base  of  naval  operations. 

However,  no  agreement  was  reached  upon  this  pro- 
posal, the  various  Powers  acting  differently.  Thus 
whereas  the  United  States  of  America  rejected  it,  and 
admitted  the  German  submarine  war- vessel  U53  to 
the  American  harbour  of  Newport,^  Norway  by  a  decree 
of  October  13,  IQIG,'-^  forbade  all  belligerent  submarine 
war- vessels  from  entering  Norwegian  territorial  waters, 
except  in  case  of  force  majeure.  Sweden  by  a  decree  of 
July  19,  1916,^  and  Holland  by  its  declaration  of  neu- 
trahty  of  August  4,  1914,^  had  adopted  a  similar  pohcy. 
Spain  by  a  decree  of  June  29,  1917,  prohibited  all  beUi- 
gerent  submarines  from  entering  Spanish  waters  and 
ports,  from  whatever  cause. 

§  345.  The    exterritoriahty    which,    according    to    a  Extem- 
universally  recognised  rule  of  International  Law,  men-  ^^iie^^ 
of-w^ar  enjoy*  in  foreign  ports,  obtains  even  in  time  of  of-War 
war  during  their  stay  in  neutral  ports.     Therefore,  for  Asylum. 
example,  prisoners  of  war  on  board  do  not  become  free 
by  coming  into  the  neutral  port  ^  so  long  as  they  are 
not  brought  on  shore.     On  the  other  hand,  beUigerent 
men-of-war  are  expected  to  comply  with  all  orders  made 
by  the  neutral  to  prevent  them  from  making  his  ports 
the  base  of  their  operations  of  war — an  order,  for  in- 
stance, not  to  leave  the  ports  at  the  same  time  as  vessels 
of  the  other  beUigerent.     And,  if  they  do  not  comply 
voluntarily,  they  may  be  made  to  do  so  through  apph- 

'  Garner,   ii.   §  56-4.      As  to   The  '  R.G.,  xxiv.  (1917),  DocumentSj 

Deutachland,  see  Gamer,  ii.  §  565.  pp.  110-114,  186. 

'  Journal   de   Droit    international  *  See  above,  vol.  i.  §  450. 

(Clunet),  xliv.  (1917),  p.  322.  *  See  above,  §  337. 


468  BELLIGERENTS   AND  NEUTRALS 

cation  of  force,  for  a  neutral  has  a  duty  to  prevent  by 
all  means  at  hand  the  abuse  of  the  asylum  granted. 

Special  provision  is  made  by  Article  24  of  Convention 
xm.  for  the  case  of  a  belhgerent  man-of-war  which 
refuses  to  leave  a  neutral  port :  '  If,  notwithstanding 
the  notification  of  the  neutral  Power,  a  belhgerent  ship 
of  war  does  not  leave  a  port  in  which  it  is  not  entitled 
to  remain,  the  neutral  Power  is  entitled  to  take  such 
measures  as  it  considers  necessary  to  render  the  ship 
incapable  of  putting  to  sea  so  long  as  the  war  lasts,  and 
the  cormnanding  officer  of  the  ship  must  facihtate  the 
execution  of  such  measures.  When  a  belhgerent  ship 
is  detained  by  a  neutral  Power,  the  ojficers  and  crew 
are  hkewise  detained.  The  officers  and  crew  so  detained 
may  be  left  in  the  ship  or  kept  either  on  another  vessel  or 
on  land,  and  may  be  subjected  to  such  measures  of 
restriction  as  it  may  appear  necessary  to  impose  upon 
them.  A  sufiicient  number  of  men  must,  however,  be 
always  left  on  board  for  looking  after  the  vessel.  The 
ofiicers  may  be  left  at  hberty  on  giving  their  word  not 
to  quit  neutral  territory  without  permission." 

If  an  ofi&cer,  left  at  hberty  on  giving  his  word,  never- 
theless escapes  from  the  neutral  country,  his  Govern- 
ment is  in  duty  bound  to  compel  him  to  return,  and  the 
neutral  Government  can  subject  him  to  disciphnary 
punishment  for  having  broken  his  parole.^ 

If  a  vessel  is  interned,  and  therefore  dismantled, 
she  loses  the  character  of  a  man-of-war.  She  no  longer 
enjoys  the  privilege  ^  of  exterritoriahty  due  to  men-of- 
war  in  foreign  waters,  and  prisoners  on  board  become 
free,  although  they  must  be  detained  by  the  neutral 
concerned.^ 

^  See  the  remarkable  case  of  the       and  Garner,  ii.  §  563. 

escape  of  members  of  the  crews  of  „  <;„„  c *.*.  ;^   a    t    ^  nQiA\    ^r, 

.,     ^  .  ■   i.         J         .,„i„  oee  bcott  in  A. J.,  x.  (lalo),  pp. 

German  cruisers  interned  on  parole  355.357 

in  the  United  States,   reported   by 

Scott  in  A.J.,  X.  (1916),  pp.  877-882,  ^  See  below,  §  348a  (6). 


NEUTRAL   ASYLUM   TO   NAVAL   FORCES  469 

§  346.  A  belligerent  man-of-war,  to  which  teipporary  Facilities 
asylum  is  granted  in  a  neutral  port,  is  not  only  notof.^ar 
disarmed  and  detained  ;    as  has  already  been  stated,  ^"'"'"^^ 
facihties  may  even  be  rendered  to  her  as  regards  shght 
repairs,^  the  supply  in  limited  quantities  of  provisions 
and  coal,^  and,  under  certain  circumstances,  the  enrol- 
ment of  a  very  small  number  of  sailors.^ 

§  347.  However,  it  would  be  easy  for  belhgerent  men-  Ai^use  of 
of-war  receiving  temporary  asylum  in  neutral  ports  to  be^'prT  ° 
abuse  it,  if  neutrals  were  not  required  to  prohibit  such  ^"^ited. 
abuse. 

(1)  It  can  abuse  asylum,  in  the  first  place,  by  ascer- 
taining whether  any,  and  if  so  what  kind  of,  enemy 
vessels  are  in  the  same  neutral  port,  accompanying 
them  when  they  leave,  and  attacking  them  immediately 
they  reach  the  open  sea.  To  prevent  such  abuse,  in 
the  eighteenth  century  several  neutral  States  arranged 
that,  if  belhgerent  men-of-war  or  privateers  met  enemy 
vessels  in  a  neutral  port,  they  were  not  to  be  allowed  to 
leave  together,  but  an  interval  of  at  least  twenty-four 
hours  was  to  elapse  between  the  saiUng  of  the  vessels. 
During  the  nineteenth  century  this  so-called  twenty- 
four  hours  rule  was  enforced  by  the  majority  of  States, 
and  the  Second  Hague  Conference,  as  has  already  been 
mentioned,*  expressly  enacted  it. 

(2)  Asylum  can,  secondly,  be  abused  by  wintering  in 
a  port  in  order  to  wait  for  other  vessels  of  the  same  fleet, 
or  by  similar  intentional  delay.  There  is  no  doubt  that 
neutrals  must  prohibit  this  abuse  by  ordering  such 
belhgerent  men-of-war  to  leave  the  neutral  ports.  ^ 

(3)  Asylum  can,  thirdly,  be  abused  by  repairing  a 
belhgerent  man-of-war  which  has  become  unseaworthy. 
Although,  as  has  already  been  explained,^  small  repairs 

^  See  above,  §  333  (5).  *  See  above,  §  333  (2). 

-  See  above,  §  333  (4).  *  See  above,  §  333  (6). 

»  See  above,  §  333  (3).  «  See  above,  §  333  (5). 


470  BELLIGERENTS   AND  NEUTRALS 

are  allowed,  a  neutral  would  violate  his  duty  of  impar- 
tiality by  allowing  such  repairs  as  would  make  good  the 
unseaworthiness  of  a  belhgerent  man-of-war. 

(4)  Asylum  can,  lastly,  be  abused  by  remaining  in  a 
neutral  port  an  undue  length  of  time  in  order  to  escape 
attack  and  capture  by  the  other  belhgerent.^  Since 
nowadays  a  right  of  pursuit  into  neutral  waters,  which 
was  asserted  by  Bynkershoek,^  is  no  longer  recognised, 
it  would  be  an  abuse  of  asylum  if  an  escaping  vessel 
were  allowed  to  make  a  prolonged  stay  in  the  neutral 
waters,  and  a  neutral  who  allowed  it  would  violate  his 
duty  of  impartiahty  by  assisting  one  of  the  belHgerents 
to  the  disadvantage  of  the  other.^  Therefore,  when, 
after  the  battle  off  Port  Arthur  in  August  1904,  the 
Russian  battleship  Cesarewitch,  the  cruiser  NoviJc,  and 
three  destroyers  escaped  and  took  refuge  in  the  then 
German  port  of  Tsing-Tau,  the  Novik,  which  was  un- 
injured, had  to  leave  the  port  after  a  few  hours,^  whereas 
the  other  vessels,  which  were  too  damaged  to  leave  the 
port,  were  disarmed  and,  together  with  their  crews, 
detained  till  the  conclusion  of  peace.  Again,  when,  at 
the  end  of  May  1905,  after  the  battle  of  Tsu  Shima, 
three  damaged  Russian  men-of-war,  the  Aurora,  Oleg, 
and  JemcJmg,  escaped  into  the  harbour  of  Manila,  the 

^  See  above,  §  333  (R).  1898  at  its  meeting  at  the  Hague— 

^  Quaestiones  Juris  publici,  i.  c.  8.  see  Annuaire,  xvii.   (1898),  p.  273 — 

See  also  above,  §§  288,  320.  answered  (Article  42)  the  question  in 

'  It  was  only  during  the  Russo-  the  affirmative. 

Japanese    War    in    1904    that    this  *  This  case  marks  the  diflference 

became    generally   recognised ;    but  between   the  duties   of    neutrals  as 

Article  24  of  Convention  xiii.  places  regards  asylum  to  land  forces  and 

it  bej'ond  all  doubt.    Until  that  war,  asylum  to  naval   forces.      Whereas 

it  was  controverted  whether  a  neutral  land  forces  crossing  neutral  frontiers 

was  obliged  either  to  dismiss  or  to  must  either  be  at  once  repulsed  or 

disarm  and  detain  men-of-war  which  else   detained,    men-of-war   may   be 

had    fled   into   his    ports   to   escape  granted  the  right  to  stay  for  some 

attack  and  capture.     See  Hall,  §  231,  limited  time  within  neutral  harbours 

and  Perels,  §  39,  p.  213,  in  contra-  and    then    leave    unhindered  ;      see 

distinction  to  Fiore,  iii.   No.   1579.  above,    §   342.       The    supply    of    a 

The  '  Reglement  sur  le  Regime  16gal  small  quantity  of  coal  to  the  Novik 

des   Na  vires  et  de  lenrs  Equipages  in  Tsing-Tau  was  criticised  by  writers 

dans  les  Ports  Strangers,'  adopted  by  in  the  press,  but  unjustly  ;  see  above, 

the  Institute  of  International  Law  in  §  333  (4). 


NEUTRAL  ASYLUM  TO  NAVAL  FORCES  471 

United  States  of  America  ordered  them  to  be  disarmed 
and,  together  with  their  crews,  to  be  detained  during 
the  war. 

§  348.  It  may  happen  during  war  that  neutral  men-  Neutral 
of-war  pick  up,  and  save  from  drowning,  soldiers  and  wa"  as  an 
sailors  belonging  to  belhgerent  men-of-war  sunk  by  the  Asylum, 
enemy,   or  that  they  take  them  on  board  for  other 
reasons.     Neutral  men-of-war  being  an  asylum  for  the 
members  of  the  belligerent  armed  forces  so  rescued, 
the  question  arose  whether  they  must  be  given  up  to 
the  enemy,  or  must  be  detained  during  the  war,  or  may 
be  brought  to  their  home  country.     Two  cases  were  on 
record   before   the   Second   Hague   Conference   which 
illustrate  this  matter. 

(1)  At  the  beginning  of  the  Chino- Japanese  War, 
on  July  25,  1894,  after  the  Japanese  cruiser  Naniwa 
had  sunk  the  British  ship  Kow-sliing,  which  served  as 
a  transport  carrying  Chinese  troops,^  forty-five  Chinese 
soldiers,  who  clung  to  the  mast  of  the  sinking  ship,  were 
rescued  by  the  French  gunboat  Lion,  and  brought  to 
the  Korean  harbour  of  Chemulpo.  Hundreds  of  others 
saved  themselves  on  some  islands  near  the  spot  where 
the  incident  occurred,  and  120  of  these  were  taken  on 
board  the  German  man-of-war  litis  and  brought  back 
to  the  Chinese  port  of  Tientsin.^ 

(2)  At  the  beginning  of  the  Russo-Japanese  War,  on 
February  9,  1904,  after  the  Russian  cruisers  Variag  and 
Korietz  had  accepted  the  challenge  ^  of  a  Japanese  fleet, 
fought  a  battle  outside  Chemulpo,  and  returned,  crowded 
with  wounded,  to  the  harbour,  the  British  cruiser  Talbot, 
the  French  Pascal,  and  the  ItaHan  Elba  received  large 
numbers  of  the  crews  of  the  disabled  Russian  cruisers. 
The  Japanese  demanded  that  these  neutral  men-of-war 

^  See  above,  §  89  n.  national    Law    during     the    Chino- 

Japanese  War  (1899),  pp.  36,  51. 
*  See  Takahashi,   Cojie*  on  Inter-  '  See  above,  §  320  (1). 


472  BELLIGEEENTS   AND  NEUTKALS 

should  give  up  the  rescued  men  as  prisoners  of  war,  but 
the  neutral  commanders  demurred,  and  it  was  arranged 
that  the  rescued  men  should  be  handed  over  to  the 
Russians  under  the  condition  that  they  should  not  take 
part  in  hostihties  during  the  war.^ 

Article  13  of  Convention  x.  of  the  Second  Hague 
Conference  settled  the  question  raised  by  these  cases 
as  follows  :  '  If  wounded,  sick,  or  shipwrecked  are  taken 
on  board  a  neutral  man-of-war,  precaution  must  be 
taken,  so  far  as  possible,  that  they  do  not  again  take 
part  in  the  operations  of  the  war/ 

Two  new  classes  of  cases,  however,  which  occurred 
during  the  World  War,  raised  difficulties  as  to  the  proper 
interpretation  of  this  article.  (1)  It  speaks  only  of 
neutral  men-of-war  and  says  nothing  concerning  the 
case  in  which  other  neutral  fuhlic  vessels — such  as 
hghtships,  revenue  cutters,  and  the  Hke  —  rescue 
wounded,  sick,  or  shipwrecked  soldiers  or  sailors. 
There  ought  to  be  no  doubt  that  this  article  must 
be  appHed  by  analogy,  although  during  the  World 
War  it  was  reported  that  Holland  did  not  detain, 
but  released,  a  number  of  German  airmen  who  had 
been  rescued  by  a  Dutch  pubhc  hghtship. 

(2)  In  the  case  of  The  Runhild,  the  question  arose 
whether  Article  13  apphed  if  a  neutral  warship  rescued 
wounded,  sick,  or  shipwrecked  soldiers  or  sailors,  not 
on  the  open  sea,  but  within  the  maritime  belt  of  the 
neutral  concerned.  The  Runhild  was  a  Swedish  vessel, 
captured  in  November  1916  by  a  German  submarine. 
While  being  navigated  by  a  prize  crew  towards  a  German 
port,  she  struck  a  mine  and  sank.  All  on  board  entered 
the  hfeboats  and  rowed  towards  the  Swedish  coast ; 
after  having  reached  the  Swedish  maritime  belt,  they 
were  taken  on  board  by  a  Swedish  torpedo  boat  and 
subsequently  landed  in  Sweden.     The  prize  crew  were 

^  See  Lawrence,  War,  pp.  63-75,  and  Takahashi,  pp.  462-466. 


NEUTRAL  ASYLUM  TO  NAVAL  FORCES  473 

at  first  interned  by  Sweden  according  to  Article  13  ; 
but,  on  protest  from  Germany,  they  were  released  in 
July  1917,  the  Swedish  Government  asserting — incor- 
rectly, I  beheve — that  this  article  only  apphes  when 
the  rescue  is  effected  on  the  open  sea. 

§  348a.  Just  as  in  war  on  land  members  of  the  belh-  Neutral 
gerent  forces  may  find  themselves  on  neutral  territory,  Jn^shi^^- 
so  in  w^ar  on  sea  shipwrecked  or  wounded  or  sick  belh-  wrecked 
gerent  soldiers  and  sailors  may  be  brought  into  neutral  and 
territory,  or  reach  it  by  their  own  efforts.     The  more  ^*'^°^''- 
important  cases  that  may  occur  are  the  following : — 

(1)  A  belhgerent  man-of-war  may  capture  ship- 
wrecked, wounded,  or  sick  enemy  soldiers  or  sailors, 
and,  instead  of  sending  them  to  one  of  her  own  ports, 
send  them  to  a  neutral  port.  The  neutral  concerned 
need  not  receive  them  ;  but  he  may  grant  them  asylum. 
If  he  does,  according  to  Article  15  of  Convention  x., 
he  is  obhged — unless  there  is  an  arrangement  to  the 
contrary  betw^een  him  and  both  belligerents — to  guard 
them  so  as  to  prevent  them  from  again  taking  part  in 
the  war ;  ^  and  the  expenses  of  tending  and  interning 
them  have  to  be  paid  by  the  belhgerent  to  whom  they 
belong. 

(2)  Neutral  merchantmen^  may  have  rescued  wounded, 
sick,  or  shipwrecked  soldiers  or  sailors  of  their  own 
accord,  or  may  have  taken  them  on  board  by  request 
from  a  belhgerent  man-of-war.  According  to  Article 
12  of  Convention  x.,  the  surrender  of  these  men  may  at 
any  time  be  demanded  by  any  belhgerent  man-of-war. 
But  if  such  a  demand  be  not  made,  and  the  men  are 
brought  into  a  neutral  port,  it  is  an  indirect  inference 
from  Article  13  (which  stipulates  the  detention  of  men 
received  by  neutral  men-of-war)  that  men  brought  in 
by  a  neutral  merchantman  need  not  be  detained. 

(3)  Shipwrecked  soldiers  or  sailors  may,  by  their  own 

^  See  above,  §  205.  »  See  above,  §  208  (2). 


474  BELLIGERENTS   AND  NEUTRALS 

efforts,  succeed  in  reaching  a  neutral  coast,  be  it  by 
swimming,  or  by  clinging  to  rafts,  or  in  one  of  their 
own  Hfeboats.  Neither  Convention  x.  nor  Convention 
XIII.  provides  for  this  case.  However,  the  fact  that 
shipwrecked  soldiers  and  sailors  rescued  by  a  neutral 
merchantman  and  landed  in  a  neutral  harbour  need 
not  be  detained,  warrants  the  opinion  that  they  need 
not  be  detained  in  case  they  succeed  in  reaching  a 
neutral  coast  by  their  own  efforts.  For  why  should 
they  be  treated  worse  than  those  rescued  and  landed 
by  neutral  merchantmen  ? 

The  practice  during  the  World  War  was  not  uniform. 
Thus  Norway  detained  survivors  from  the  sunk  British 
vessels  India  and  Lord  Alverstone  who  succeeded  in 
reaching  the  Norwegian  coast ;  and  Spain  detained 
the  surviving  combatants  from  the  British  transport 
Woodfield  who  reached  the  Moroccan  coast  in  their  own 
Hfeboat.  On  the  other  hand,  Spain  did  not  detain  the 
German  prize  crew  who  gained  the  Spanish  coast  in  a 
Hfeboat  belonging  to  their  prize  the  TJiyra  ;  and  Greece, 
while  still  neutral,  did  not  detain  the  survivors  of  the 
Ramazan,  a  sunk  British  troopship. 

(4)  It  may  happen  that  belhgerent  vessels  are  un- 
lawfully attacked  and  sunk  by  the  other  belhgerent 
while  in  neutral  territorial  waters,  and  soldiers  or 
sailors  from  these  vessels  may  reach  the  neutral  shore. 
Conventions  x.  and  xiii.  do  not  provide  for  this  case 
either.  Since,  even  if  the  vessel  had  been  lawfully 
attacked  and  sunk  on  the  open  sea,  these  men  need 
not  be  detained  if  they  are  brought  to  a  neutral  port  by 
a  neutral  merchantman,  or  reach  it  by  their  own  efforts, 
they  surely  need  not  be  detained  if  their  vessel  was  un- 
lawfully attacked  and  sunk  in  neutral  waters.  Indeed, 
in  this  case,  even  if  they  are  rescued  by  a  neutral  man- 
of-war  and  landed  on  the  neutral  shore,  they  need  not 
be  detained.     The  reason  for  this  is,  that  the  attacked 


NEUTRAL   ASYLUM   TO   NAVAL   FORCES  475 

vessel,  and  the  men  on  board,  being  legitimately  in 
neutral  territory  when  the  vessel  was  unlawfully  sunk, 
the  survivors  were  not  saved  from  lawful  capture  by 
the  rescuing  man-of-war.  Their  capture  by  the  enemy 
would  have  been  as  unlawful  as  was  the  sinking  of  their 
vessel ;  and  Article  13  ^  of  Convention  x.  does  therefore 
not  apply. 

However,  during  the  World  War  Denmark  ruled 
differently.  In  August  1915  a  British  submarine  ran 
aground  in  Danish  territorial  waters,  and  was  notified 
that  she  must  be  refloated  within  twenty-four  hours 
to  avoid  sequestration.  However,  before  the  lapse  of 
this  period  she  was  attacked  and  sunlc  by  a  German 
destroyer.  Survivors  were  rescued  by  a  Danish  man- 
of-war  and  landed  in  Denmark ;  and  the  Danish 
Government  held  that  they  must  be  detained.  Again, 
in  September  1917,  a  British  man-of-war  pursuing  a 
German  armed  trawler  fired  on  her  after  she  had  already 
entered  Danish  neutral  waters,  and  sank  her  ;  when  the 
survivors  reached  the  Danish  coast,  the  Danish  Govern- 
ment again  ruled  that  they  must  be  detained  and 
interned.^ 

(5)  Armed  guards  placed  by  a  belhgerent  on  a  neutral 
merchantman  may  reach  a  neutral  port.  During  the 
World  War  the  Alhes  quite  generally  resorted  to  the 
practice  of  sending  neutral  merchantmen  stopped  by 
their  cruisers  to  a  belhgerent  port  for  the  purpose  of 
search.^  These  vessels  were  not  captured,  but  were 
simply  ordered  to  na\ngate  to  a  certain  belhgerent 
port ;  and  frequently  an  armed  guard  was  placed  on 
board  so  as  to  ensure  obedience.  Now  if  one  of  these 
vessels  on  her  way  to  the  belhgerent  port  of   search 

*  See  above,  §  348.  because  orders  had   been  given  for 

her  to  be  disarmed,    and   her   men 

^  The  case   of    The   Dresden — see        interned,   before  the  attack  by  the 
below,  §  361 — in  which  the  survivors       British  occurred, 
were  detained  by  Chili,  is  different,  *  See  below,  §  4'21a. 


476  BELLIGERENTS   AND  NEUTRALS 

was  compelled  by  distress  to  call  at  a  neutral  port, 
there  would  certainly  be  no  duty  upon  the  neutral  to 
detain  the  crew,  because  the  case  is  analogous  to  that 
of  a  prize  in  distress  brought  into  a  neutral  port.^  But 
suppose  the  crew  of  the  vessel,  once  in  a  neutral  port, 
refuse  to  leave,  or  that  the  vessel  reaches  a  port  of  her 
own  flag  State  where,  of  course,  she  would  be  released 
by  the  local  authorities  :  must  the  neutral  then  detain 
the  armed  guard,  or  may  he  permit  them  to  leave  ? 
Again,  if  the  crew  overpower  the  armed  guard,  and 
take  refuge  in  a  neutral  port,  must  the  neutral  detain 
the  guard  ? 

Since  in  all  these,  and  similar,  cases  the  guard  is,  as 
it  were,  stranded  on  neutral  territory,  there  is,  in  my 
opinion,  no  duty  upon  the  neutral  to  detain  and  intern 
them.  An  illustrative  case  is  that  of  The  Andrew 
Welch.  In  1915,  during  the  World  War,  while  the 
United  States  was  still  neutral,  the  Andrew  Welch,  an 
American  vessel,  was  stopped  on  the  open  sea  by  a 
British  cruiser  and  was  directed  to  proceed  to  Lerwick, 
an  armed  guard  of  six  men  having  been  put  on  board. 
Owing  to  stress  of  weather  she  was  compelled  to  enter 
the  port  of  Christiansand  ;  once  there,  the  crew  refused 
to  proceed  to  Lerwick.  The  Norwegian  Government 
did  not  detain  the  armed  guard,  but  allowed  them  to 
return  to  England. 

(6)  Prisoners  of  war  held  on  a  belhgerent  vessel  may 
reach  neutral  shores.  Two  classes  of  cases  must  here 
be  distinguished  : — 

(i)  It  may  happen  that  the  vessel  is  attacked  by  the 
enemy  and  sunk  or  wrecked,  and  that  surviving  prisoners 
either  reach  a  neutral  coast  by  their  own  efforts  or  are 
rescued  and  brought  there  by  a  neutral  merchantman. 
Or  again,  prisoners  on  a  belhgerent  vessel  may  jump 
overboard  while  the  vessel  is  at  sea  and  reach  a  neutral 

*  See  above,  §  328,  and  Article  21  of  Convention  xiii. 


NEUTRAL   ASYLUM    TO   NAVAL   FORCES  477 

coast.  The  case  of  these  men  is  analogous  to  |;hat  of 
prisoners  on  land  who  escape  into  neighbouring  neutral 
territory.  For  this  reason  the  neutral  must  not  detain 
them,  but  must  allow  them  to  leave  the  country  ;  only 
if  the  neutral  permits  them  to  remain  in  the  country 
may  he  intern  them.^ 

(ii)  On  the  other  hand,  it  may  happen  that  prisoners 
of  war  are  held  on  board  a  belhgerent  vessel  which  is 
in  a  neutral  port  for  legitimate  purposes,  but  having 
failed  to  leave  it  in  due  time,  is  detained  with  its  officers 
and  crew.  What  is  the  fate  of  the  prisoners  on  board  ? 
That  they  now  become  free,  there  is  no  doubt ;  but  the 
question  is  whether  the  neutral  may  allow  them  to 
leave  the  country,  or  is  in  duty  bound  to  detain  and 
intern  them.  It  is  asserted  that  they  need  not  be 
detained,  because  the  case  is  analogous  to  the  case  of 
prisoners  brought  into  neutral  territory  by  enemy 
troops  which  take  refuge  there.  Yet  this  analogy  does 
not  exist,  because  belligerent  troops  in  land  warfare 
entering  neutral  territory,  if  not  repulsed  on  the  spot, 
must  at  once  be  disarmed  and  interned,  whereas  men- 
of-war  may,  for  certain  purposes  and  to  a  certain  extent, 
be  allowed  to  enter  neutral  harbours  and  receive  hospi- 
tahty  there  without  being  disarmed  and  detained.  It 
is  only  when  they  do  not  leave  in  due  time  that  they 
must  be  detained.  For  this  reason,  in  the  case  now 
under  discussion,  the  neutral  is  confronted  by  the  fact 
that  there  are  on  his  territory  a  number  of  combatants 
of  both  belhgerents,  i.e.  the  officers  and  crew  of  the 
vessel,  and  the  former  prisoners.  As  both  parties 
arrived  legitimately  in  the  neutral  harbour,  if  the 
neutral  afterwards  detains  the  officers  and  crew,  he  must 
in  justice  Hkewise  detain  the  former  prisoners  of  war.^ 

§  3486.  During   war   shipwrecked   war   material — or 

^  See  above,  §  337,  and  Article  13  of  Convention  v. 
-  See  above,  §  345. 


478  BELLIGERENTS  AND  NEUTRALS 

Neutral  even  an  abandoned  shipwrecked  man-of-war — belong- 
Ind^skm-  ^^8  *^  ^  belligerent  may  be  brought  to  neutral  territory, 
wrecked    Several  cases  must  be  distinguished  : — 

War  . 

Material.  (1)  In  case  such  shipwrecked  war  material  is  brought 
into  neutral  territory  by  the  forces  of  the  belhgerent 
owner  for  the  purpose  of  avoiding  capture  by  the  enemy, 
there  is  no  doubt  that  the  neutral  State  must  seques- 
trate it,  and  must  not  restore  it  to  the  belhgerent 
owner  till  after  the  war. 

(2)  The  same  is  vahd  in  case  shipwrecked  war  material 
is  washed  up  on  a  neutral  shore,  or  is  salved  at  sea  by 
a  neutral  man-of-war. 

(3)  Different,  however,  is  the  case,  which  is  not 
settled,  of  shipwrecked  war  material  being  picked  up 
on  the  open  sea  by  neutral  merchantme^i  and  carried 
to  a  neutral  harbour.  Several  such  cases  occurred 
during  the  World  War.^  Thus  in  December  1914  the  Orn, 
a  Norwegian  merchant  vessel,  salved  part  of  the  naval 
gear  of  the  British  cruisers  Cressy,  Hogue,  and  Ahoukir, 
which  had  been  smik  by  submarine,  and  brought  it  to 
the  Hook  of  Holland.  In  the  same  month  the  same 
vessel  brought  to  the  Hook  of  Holland  a  British  officer 
and  mechanic  in  a  seaplane  which  had  been  forced  to 
descend  in  the  North  Sea.  In  January  1916  a  boat 
from  the  Noord-Hinder  lightship  approached  an  aban- 
doned British  seaplane,  removed  a  Lewis  machine  gun 
and  other  articles,  and  took  them  to  the  hghtship, 
whence  they  were  sent  to  the  mainland  ;  the  seaplane, 
stripped  of  its  machine  gun,  was  ultimately  recovered 
at  sea  by  the  British  authorities.  In  April  1916  ship's 
gear  and  a  quantity  of  stores  of  various  kinds  belonging 
to  the  British  destroyer  Medusa,  which  had  been 
abandoned  by  her  crew  in  the  North  Sea,  were  salved 
by  Dutch  fishermen,  and  brought  to  Holland.  In  the 
same  month  Lieutenant  Beare's  seaplane  was  obhged 

'  See  Pari.  Papers,  Misc.,  No.  4  (1918),  Cd.  8985. 


NEUTRAL  ASYLUM  TO   NAVAL  FORCES  479 

to  descend  in  the  North  Sea,  and  he  was  rescued  together 
with  his  machine  by  a  Dutch  fishing  boat  wliich  took 
them  to  a  Dutch  port.  In  September  1917  a  British 
seaplane  manned  by  Lieutenant  Hopcroft  and  Petty - 
Officer  Garner,  which  had  been  forced  to  descend  in 
the  North  Sea,  was  rescued  by  a  Dutch  fishing  boat, 
and  taken  to  a  Dutch  port.  In  all  these  cases  the 
rescued  officers  were  released,  but  the  shipwrecked 
material  was  retained  by  Holland.  The  British  Govern- 
ment demanded  the  release  of  the  material  also,  cor- 
rectly contending  that  there  was  no  rule  of  International 
Law  which  forced  a  neutral  Government  to  retain  it, 
and  that  the  case  of  shipwrecked  material  brought  by 
neutral  merchantmen  into  a  neutral  port  was  essen- 
tially similar  to  that  of  rescued  belhgerent  soldiers  and 
sailors  similarly  brought  into  a  neutral  port.  The 
Dutch  Government,  however,  refused  to  agree,  asserting 
that  the  duties  of  neutrality  did  not  allow  them  to 
release  the  war  material,  although  a  special  rule  allowed 
them  to  release  the  officers. 

Whatever  the  merits  of  the  case  may  be,  the  argu- 
ments by  which  the  Dutch  Government  defended  their 
attitude  were  singularly  inapphcable.  They  quoted 
Article  6  of  Convention  xiii.  of  the  Second  Hague  Con- 
ference which  forbids  '  the  supply,  in  any  mamier, 
directly  or  indirectly,  by  a  neutral  Power  to  a  belh- 
gerent Power,  of  warships,  ammunition,  or  war  material 
of  any  kind,'  but  this  article  has  nothing  whatever  to  do 
with  the  case.  They  contended  that  the  release  of  belh- 
gerent soldiers  and  sailors  rescued  by  neutral  merchant- 
men was  an  exception  to  a  general  principle  sanctioned 
by  a  special  rule.  Yet  no  such  special  rule  exists,  the  re- 
lease of  belhgerent  soldiers  and  sailors  rescued  by  neutral 
merchantmen  being  simply,  as  has  already  been  shown, ^ 
an  inference  from  Article  13  of  Convention  x. 

'  See  above,  §  348a  (2). 


480  BELLIGERENTS   AND  NEUTRALS 

VI 

SUPPLIES  AND  LOANS  TO  BELLIGERENTS 

Vattel,  iii.  §  110— Hall,  §§  216-217— Westlake,  ii.  pp.  251-253— Lawrence, 
§  235— Phillimore,  iii.  §  151— Twiss,  ii.  §§  227,  228— Halleck,  ii.  p.  186— 
Taylor,  §§  622-625— Walker,  §  67— Wharton,  iii.  §§  390-391— Moore, 
v-ii.  §§  1307-1312— Bluntschli,  §§  765-768— HeflFter,  §  148— GeflFcken  in 
Holtzendorff,  iv.  pp.  686-700— Ullmann,  §§  191-192— Bonfils,  Nos.  1471- 
1474— Despagnet,  Nos.  693-694— RiWer,  ii.  pp.  385-411— Calvo,  iv.  §§ 
2624-2630— Fiore,  iii.  Nos.  1559-1563— Martens,  ii.  §  134— Kleen,  i. 
§§  66-69,  96-97— M6rignhac,  iii".  pp.  547-575— Pillet,  pp.  289-293— 
Dupuis,  Nos.  317-319— Land  Warfare,  §§  477-480— Einicke,  Rechte  und 
PJlichten  der  neutralen  Mdchte  im  Seekrieg  (1912),  pp.  71-117 — Pyke, 
The  Laiv  of  Contraband  of  War  (1915),  pp.  55-88 — Gregory,  The  Manu- 
facture and  Sale  of  Munitions  of  War  (1916) — Westlake,  Papers,  pp. 
362-392— Nys  in  R.I.,  2nd  Ser.  xv.  (1913),  pp.  181-196— Butte  in  the 
Proceedings  of  the  American  Society  of  International  Lavj,  ix.  (1916). 
pp.  112-134— Morey  and  Gregory  in  A.  J.,  x.  (1916),  pp.  467-491,  543-555 
— Garner,  ii.  §§  546-559,  and  in  the  Proceedings  of  the  American  Society 
of  International  Law,  x.  (1916),  pp.  18-32,  and  in  .4../.,  x.  (1916),  pp. 
749-797. 

Supply  on  §  349.  The  duty  of  impartiality  must  prevent  a 
Neutrals?^  ueutial  f lom  Supplying  belligerents  with  arms,  ammuni- 
tion, vessels,  and  niihtary  provisions,^  whether  for 
money  or  gratuitously.  A  neutral  who  sold  arms  and 
ammunition  to  a  belUgerent  at  a  profit,  and  one  who 
supphed  them  as  a  gift,  would  each  violate  their  duty 
of  impartiahty.  So  far  as  direct  transactions  regard- 
ing such  supply  between  beUigerents  and  neutrals  are 
concerned,  the  rule  is  settled.  The  case  is  different, 
however,  where  a  neutral  does  not  directly  and  know- 
ingly deal  with  a  belhgerent,  but  is,  or  ought  to  be, 
aware  that  he  is  indirectly  supplying  a  belhgerent. 
Difierent  neutral  States  have  taken  up  difierent  attitudes 
regarding  cases  of  this  kind.  Thus  in  1825,  during  the 
War  of  Independence  which  the  Spanish  South  American 
Colonies  waged  against  their  mother  country,  the 
Swedish  Government  sold  three  old  men-of-war,  the 

1  See  Article  6  of  Convention  xiii. 


SUPPLIES   AND   LOANS  TO   BELLIGERENTS  481 

Fdrsigtiyheteii,  Euridice,  and  CamiUe,  to  two  merchants 
who  on  their  part  sold   them  to  Enghsh   merchants 
representing  the  Government  of  the  Mexican  insurgents. 
When  Spam  complained,  Sweden  rescinded  the  contract.i 
Further,  the  British  Government  in  1863,  durin^^  the 
American  Civil  War,  after  selhng  an  old  gunboat^  the 
Hctar,  to  a  private  purchaser  and  subsequently  finding 
that  the  agents  of  the  Confederate  States  had  obtained 
possession  of  her,  gave  an  order  that  during  the  war  no 
more  Government  ships  should  be  sold.2    On  the  other 
hand,  the  Government  of  the  United  States  of  America 
m  pursuance  of  an  Act  passed  in  1868  for  the  sale  of 
arms  which  the  end  of  the  Civil  War  had  rendered 
superfluous,  sold  in  1871,  notwithstanding  the  Franco- 
German  War,  thousands  of  arms  and  other  war  material 
which  were  shipped  to  France.^    The  attitude  then 
adopted  by  the  United  States  is  now  generally  con 
demned,   and  Article  6  of  Convention  xiii.   may  be 
quoted  against  a  repetition  of  such  a  practice  on  the 
part  of  a  neutral  State.     This  article  prohibits   the 
supply  m  any  manner,  directly  or  indirectly,  by  a  neutral 
State  to  a  beUigerent,  of  warships,  ammunition,  or  war 
material  of  any  kind  whatever. 

§350    In  contradistinction  to  supply  to  belhgerents  Supply  on 
by  neutral  fetates,  the  supply  of  such  articles  by  subjects  ^^1^^^^^^^ 
of  neutrals  is  lawful,  and  neutral  States  are  not  there-  of 
fore,  obhged  by  their  duty  of  impartiahty  to  prevent  ^'"'"^'• 
It.    Article  7  of  Convention  v.  and  Article  7  of  Con- 
vention XIII.  concur  in  enacting  the  old  customary  rule 
that  '  A  neutral  Power  is  not  bound  to  prevent  the 
export  or  transit,  for  one  or  other  of  the  belhgerents  of 
arms    mumtions  of  war,   or,  in  general,   of  anything 
which  can  be  of  use  to  an  army  or  fleet.^    Moreover! 

PP   IS-^^r'""'  ^""''*  '^^^^'  "•        ./  S^^    ^^^^t°°.    "i-    §   391,    and 
bee  La-wTence,  3rd  ed.  p.  520. 

VOL.  II.  2h 


482  BELLIGERENTS    AND   NEUTRALS 

Article  18  ^  of  Convention  v.  recognises  that  the  furnish- 
ing of  suppHes  to  one  belligerent  by  subjects  of  neutrals 
who  do  not  live  on  the  territory  of  the  other  belhgerent, 
or  on  territory  occupied  by  him,  does  not  invest  them 
with  enemy  character.  When,  in  August  1870,  during 
the  Franco-German  War,  Germany  lodged  complaints 
with  the  British  Government  for  not  prohibiting  its 
subjects  from  supplying  arms  and  ammunition  to  the 
French  Government,  Great  Britain  correctly  rephed 
that  she  was  not  by  International  Law  under  any 
obligation  to  prevent  her  subjects  from  doing  so. 

Again,  during  the  World  War,  the  Government  of 
the  United  States  took  up  the  same  attitude,  when 
Germany  and  Austria-Hungary  complained  because 
American  manufacturers  and  traders  supphed  the  Alhes 
with  arms  and  ammunition.'^ 

Of  course,  a  neutral  State  which  is  anxious  to  avoid 
all  controversy  and  friction  can,  by  his  Municipal  Law, 
order  his  subjects  to  abstain  from  furnishing  such 
supphes,  as,  for  instance,  did  Switzerland  and  Belgium 
during  the  Franco-German  War.  But  such  an  attitude 
is  dictated  by  pohtical  prudence,  and  not  by  any  obhga- 
tion  imposed  by  International  Law. 

The  endeavour  to  make  a  distinction  between  furnish- 
ing suppHes  in  single  cases,  or  on  a  small  scale,  and 
furnishing  supphes  on  a  large  scale,  and  to  regard  only 
the  former  as  lawful,^  has  found  recognition  neither  in 
theory  nor  in  practice.  As  International  Law  stands, 
belligerents  may  make  use  of  visit,  search,  and  seizure 
to  protect  themselves  against  the  conveyance  of  con- 
traband to  the  enemy  by  sea  by  subjects  of  neutrals. 
But  so  far  as  their  home  State  is  concerned,  such  neutral 

^  That  Great   Britain   entered   a  694,     927-934,     and    the    excellent 

reservation  against  Article   18   was  article  of  Gamer  in  ^./.,  x.  (1916), 

pointed   out   abo%'e,   in  §  88,   n.   2,  pp.  749-797;    see  also  Garner,  ii.  §§ 

where  the  meaning  of  the  reserva-  546-558. 
tion  was  explained. 

2  See  J.J.,  ix.   (1915),  pp.   687-  *  See  BluntschU,  §  766. 


SUPPLIES   AND   LOANS  TO   BELLIGERENTS  483 

subjects,  at  the  risk  of  having  their  property  seized 
during  transit,  may  supply  either  belligerent  with  any 
amount  of  arms,  anmiunition,  coal,  provisions,  and 
even  with  armed  ships,^  provided  always  that  they 
deal  with  the  belligerents  in  the  ordinary  way  of 
commerce. 

The  case  is  different  when  there  is  no  ordinary  com- 
merce with  a  belhgerent  Government,  and  when  subjects 
of  neutrals  directly  supply  a  belhgerent  army  or  navy, 
or  parts  of  them.  If,  for  instance,  a  belhgerent  fleet 
is  cruising  outside  the  maritime  belt  of  a  neutral,  that 
neutral  must  prevent  vessels  belonging  to  his  subjects 
from  bringing  coal,  arms,  ammunition,  and  provisions 
to  that  fleet ;  for  otherwise  he  would  be  allowing  the 
belhgerent  to  use  neutral  resources  for  naval  opera- 
tioiis.2  But  he  need  not  prevent  vessels  belonging  to 
his  subjects  from  bringing  coal,  arms,  ammunition,  and 
provisions  to  belhgerent  ports,  although  the  supply  is 
destined  for  the  navy  and  the  army  of  the  belhgerent. 
Nor  need  he  prevent  belligerent  merchantmen  from 
coming  into  his  ports  and  transporting  arms  and  the 
hke,  bought  from  his  subjects,  to  the  ports  of  their 
home  State.  Nor  need  he  prevent  vessels  belonging 
to  his  subjects  from  following  a  belhgerent  fleet,  and 
supplying  it  en  route  ^  with  coal,  ammunition,  provi- 
sions, and  the  hke,  provided  that  this  does  not  take 
place  in  the  neutral  maritime  belt. 

There  is  no  doubt  then  that,  as  the  law  stands  at 
present,  neutrals  need  not  prevent  their  subjects  from 
supplying  belhgerents  with  arms  and  ammunition.  Yet 
there  is  also  no  doubt  that  such  supphes  are  apt  to 
prolong  a  war  which  otherwise  would  come  to  an  end 

^  See  above,  §  334,  and  below,  to  the  United  States  on  June  29, 
§397.  1915,  during  the  World  War,  and 

the  American  reply  of  August  12, 

*  See  above,  §  333  (4) ;    and  the       1915,  cited  by  Garner,  ii.  §  549  n. 
Npte  addressed  by  Austria-Hungary  '  See  above,  §  311,  n.  4. 


484  BELLIGERENTS   AND   NEUTRALS 

at  an  earlier  date.  But  it  will  be  a  long  time,  if  it  ever 
happens,  before  it  is  made  the  duty  of  neutrals  to 
prevent  such  suppHes  as  far  as  is  in  their  power,  and  to 
punish  such  of  their  subjects  as  furnish  them.  The 
profit  derived  from  such  supphes  being  enormous,  the 
members  of  the  Family  of  Nations  are  not  inchned  to 
cripple  the  trade  of  their  subjects  by  preventing  them. 
Further,  belhgerents  want  to  have  the  opportunity  of 
replenishing  their  arms  and  ammunition  if  they  run 
short  during  war.  Moreover,  an  alteration  of  the 
i3resent  law  would  be  to  the  disadvantage  of  an  innocent 
belligerent,  who  had  not  expected  an  attack,  and  was 
therefore  not  prepared  for  war,  while  his  adversary, 
who  planned  the  attack,  would  have  made  ample  pre- 
paration. However  this  may  be,  the  question  is  one 
of  the  standard  of  pubUc  morahty.^  If  this  standard 
rises,  and  it  becomes  the  conviction  of  the  world  at 
large  that  the  supply  of  arms  and  ammunition  by 
subjects  of  neutrals  is  apt  to  lengthen  wars,  a  rule  will 
appear  under  which  neutrals  have  to  prevent  it. 
Loans  and  §351.  His  duty  of  impartiahty  must  prevent  a 
onS'^^  neutral  State  from  granting  a  loan  to  either  belhgerent. 
part  of  Vattel's  2  distinction  between  interest-bearing  loans  and 
loans  carr5rLng  no  interest,  and  his  assertion  that  loans 
on  the  part  of  neutrals  are  lawful  if  they  bear  interest 
and  are  made  with  the  pure  intention  of  making  money, 
have  not  found  favour  with  other  writers.  Nor  do  I 
know  any  instance  of  an  interest-bearing  loan  having 
been  made  by  a  neutral  State  during  the  nineteenth 
century. 

What  is  vahd  regarding  a  loan  is  all  the  more  valid 
regarding  subsidies  in  money  granted  to  a  belhgerent 

^  See  above,  vol.  i.  §  51  (7) ;    see  trary  view,   see  Butte   in  the  Pro- 

also  Westlake',  Papers,  pp.  362-392,  ceedinga  of  the  American  Society  of 

and  Gregory    The  Manufacture  and  International    Law,    v.    (1916),    pp. 

Sale  of  Munitims  of    War   (1916),  112-134. 
where   the   present   rule  of    law   is 

very  ably  defended.     For  the  con-  ^  ill.  §  110. 


SUPPLIES   AND  LOANS  TO  BELLIGERENTS  485 

by  a  neutral  State.  Through  the  granting  of  subsidies 
a  neutral  State  becomes  as  much  the  ally  of  the  bel- 
ligerent as  it  would  by  furnishing  him  with  troops.^ 

§  352.  It  was  formerly  a  moot  point  in  the  theory  of  Loans  and 
International  Law  whether  a  neutral  is  obUged  by  his  on^the'^^ 
duty  of  impartiahty  to  prevent  his  subjects  from  grant-  P*rtof 
ing  subsidies  and  loans  to  beUigerents  to  enable  them  of 
to  continue  the  war.  Several  writers  ^  maintained  ^°"^''^^^- 
either  that  a  neutral  was  obhged  to  prevent  such  sub- 
sidies and  loans  altogether,  or  at  least  that  he  must 
prohibit  a  pubhc  subscription  for  them  on  neutral 
territory.  On  the  other  hand,  a  number  of  writers 
asserted  that,  since  money  is  just  as  much  an  article 
of  commerce  as  goods,  a  neutral  was  in  no  wise  obliged 
to  prevent  on  his  territory  a  pubhc  subscription  by  his 
subjects  to  loans  for  the  beUigerents.  In  contradis- 
tinction to  the  theory  of  International  Law,  the  prac- 
tice of  the  States  has  estabhshed  beyond  doubt  that 
neutrals  need  not  prevent  subscriptions  on  their  terri- 
tory to  loans  for  belhgerents.  Thus  in  1854,  during  the 
Crimean  War,  France  protested  in  vain  against  a  Russian 
loan  being  raised  in  Amsterdam,  Berhn,  and  Hamburg. 
In  1870,  during  the  Franco-German  War,  a  French 
loan  was  raised  in  London.  In  1877,  during  the  Eusso- 
Turkish  War,  no  neutral  prevented  his  subjects  from 
subscribing  to  the  Russian  loan.  In  1904,  during  the 
Russo-Japanese  War,  Japanese  loans  were  raised  in 
London  and  Berhn,  and  Russian  loans  in  Paris  and 
Berlin. 

On  the  other  hand,  during  the  World  War,  President 

>  See  above,  §§  305,  306,  321.  Lord  Chief  Justice  Best  only  decided 

*  See      Phillimore,     iii.     §     151  ;  '  that  it  was  contrary  to  the  Law  of 

Bluntschli,   §  7'i8  ;    HefFter,   §148;  Nations  for  persons  residing  in  this 

Kleen,  i.  §  68.   The  case  of  De  Wiitz  v.  country    to    enter    into   any   agree- 

Hendrick-9,  (1824)9  Moo.  586,  quoted  ments  to  raise  money  by  way  of  a 

by  Phillimore  in  support  of  his  asser-  loan  for  the  purpose  of  supporting 

tion  that  neutrals  must  prevent  their  subjects  of  a  foreign  State  m  arm* 

subjects  from  subscribing  to  a  loan  against  a  Government  in  alliance  ivith 

for  belligerents,  is  not  decisive,  for  our  own.' 


486  BELLIGERENTS   AND   NEUTRALS 

Wilson  of  the  United  States  of  America,  by  his  advice 
to  the  American  bankers/  at  first  prevented,  though  he 
did  not  prohibit,  the  raising  of  loans  by  any  of  the  belh- 
gerents.  But  an  Anglo-French  loan  was  raised  in  the 
United  States  without  objection  in  September  1915, 
for  the  purpose  of  stabihsing  the  rate  of  exchange  by 
enabhng  Great  Britain  and  France  to  pay  for  their 
American  purchases  in  American  money,  and  other 
similar  loans  were  raised  there  later.^ 

Matters  differ  somewhat  in  regard  to  subsidies  to 
beUigerents  by  subjects  of  neutrals.  A  neutral  is  not 
indeed  obhged  to  prevent  individual  subjects  from 
granting  subsidies  to  belhgerents,  just  as  he  is  not 
obliged  to  prevent  them  from  enlisting  with  them.  But 
if  he  w^ere  to  allow  on  his  territory  a  pubhc  appeal  for 
subscriptions  to  such  subsidies,  he  would  certainly 
violate  his  duty  of  impartiahty ;  for  whereas  loans  are 
a  matter  of  commerce,  subsidies  are  not.  However, 
pubhc  appeals  for  subscriptions  of  money  for  charitable 
purposes,  e.g.  for  the  wounded,  prisoners,  and  the  hke, 
need  not  be  prevented,  even  if  they  are  only  made  in 
favour  of  one  of  the  belhgerents. 

This  distinction,  then,  between  loans  and  subsidies, 
public  subscriptions  for  loans  being  permitted,  but  those 
for  subsidies  being  prohibited,  is  certainly  correct  as  the 
law  stands  at  present.  But  there  is  no  doubt  that  the 
fact  of  belhgerents  having  the  opportunity  of  getting 
loans  from  subjects  of  neutrals  is  apt  to  lengthen  wars. 
The  Kusso-Japanese  War,  for  instance,  would  have 
come  to  an  end  much  sooner  if  either  belligerent  could 
have  been  prevented  from  borrowing  money  from  subjects 
of  neutrals.     Therefore,  what  has  been  said  with  regard 

^  Garner,  ii.  §  569.  thing   which   can   be  of   use   to  an 

*  The  Second  Hague  Conference,  army  or  fleet,'  has  indirectly  recog- 

by  enacting  in  Article  7  of  Conven-  nised  that  he  need  not  prevent  the 

tion  V.  that  a  neutral  '  is  not  bound  subscription  on  his  territory  to  loans 

to  prevent  the  export  ...  of  any-  for  belligerents. 


SERVICES  TO  BELLIGERENTS  487 

to  the  supply  of  arms  and  ammunition  applies  likewise 
to  loans  :  if  the  standard  of  pubhc  morality  rises,  and 
it  becomes  the  conviction  of  the  world  at  large  that 
loans  by  subjects  of  neutrals  are  apt  to  lengthen  wars, 
a  rule  will  grow  up  under  which  neutral  Governments 
will  have  to  prevent  such  loans. 


VII 

SERVICES  TO  BELLIGERENTS 

Westlake,  ii.  pp.  253-254 — Despagnet,  No.  (596  bis — Bonfils,  No.  1475* — 
UUraann,  S  192— Rivier,  ii.  pp.  388-391— Nys,  iii.  pp.  671-678— Calvo, 
iv.  §§  2(540-2641- Martens,  ii.  §  134— Perels,  §43— Kleen,  i.  §§  103-108— 
Lawrence,  War,  pp.  83-92,  218-220— Scholz,  Drahtlote  Telegraphic  und 
Neutralitdt  (1905),  passim,  and  Krieg  und  Seekabel  (1904),  pp.  122-133 
—Land  Warfare,  §§  481-484— Wehberg,  §  11— Kebedgy  in  R.I.,  2nd 
Ser.  vi.  (1904),  pp.  445-451— Garner,  ii.  §  560. 

§  353.  Since  pilots  are  in  the  service  of  httoral  States,  Pilotage. 
the  question  whether  neutrals  may  permit  them  to 
render  services  to  belhgerent  men-of-war  and  transport 
vessels  is  of  importance.  Article  11  ^  of  Hague  Con- 
vention XIII.  enacts  that  *  a  neutral  Power  may  allow 
belhgerent  warships  to  employ  its  hcensed  pilots.' 
Since,  therefore,  everything  is  left  to  the  discretion  of 
neutrals,  they  will  have  to  take  the  merits  and  needs 
of  every  case  into  account.  There  would  certainly  be 
no  objection  to  a  neutral  allowing  belhgerent  vessels  to 
which  asylum  is  legitimately  granted  to  be  piloted  into 
his  ports,  and  also  belhgerent  war-vessels  to  be  piloted 
through  his  maritime  belt,  if  their  passage  is  not  pro- 
hibited. But  a  belhgerent  might  justly  object  to  the 
men-of-war  of  his  adversary  being  piloted  on  the  open 
sea  by  pilots  of  a  neutral  Power,  except  in  a  case  of 
distress. 

It  is  worth  mentioning  that  Great  Britain,  during 

*  Germany  entered  a  reservation  against  Article  11. 


Neutrals. 


4S8  BELLIGERENTS  AND  NEUTRALS 

the  Franco-German  War  in  1870,  prohibited  her  pilots 
from  conducting  German  and  French  men-of-war  which 
were  outside  the  maritime  belt,  except  when  in  distress, 
and  that  Denmark,  Norway,  and  Sweden,  which  compel 
belhgerent  warships  to  use  local  pilots  when  entering 
or  leaving  a  harbour,  and  the  like,  prohibit  their  pilots 
from  conducting  belhgerent  warships  outside  these  areas, 
except  when  in  distress.^ 
Transport  §  354.  It  is  generally  recognised  that  the  duty  of 
part  of  impartiahty  incumbent  upon  a  neutral  obhges  him  to 
prevent  his  men-of-war  and  other  public  vessels  from 
rendering  transport  services  to  either  belhgerent.  There- 
fore, such  vessels  must  neither  carry  soldiers  nor  sailors 
belonging  to  belhgerent  forces,  nor  their  prisoners  of 
war,  nor  ammunition,  nor  mihtary  or  naval  provisions, 
nor  despatches.  The  question  how  far  such  vessels  are 
prevented  from  carrying  enemy  subjects  other  than 
members  of  the  forces  depends  upon  the  question 
whether,  by  carrjang  those  individuals,  they  render 
services  to  one  of  the  belhgerents  which  are  detrimental 
to  the  other.  Thus,  when  in  1901,  during  the  South 
African  War,  the  Dutch  Government  intended  to  send 
a  man-of-war,  the  Gelderland,  to  President  Kruger  to 
convey  him  to  Europe,  they  made  sure  in  advance  that 
Great  Britain  did  not  object. 

The  question  has  been  raised  ^  whether  a  neutral 
whose  rolhng  stock  runs  on  the  railway  hues  of  a  belh- 
gerent, may  continue  to  leave  it  there  although  it  is 
being  used  for  the  transport  of  troops,  war  material, 
and  the  hke.  The  answer,  I  believe,  ought  to  be  in  the 
negative  ;  for  there  is  no  doubt  that,  if  the  rolhng  stock 
remains  on  the  railway  hnes  of  a  belligerent,  the  neutral 
concerned  is  indirectly  rendering  transport  services  to 
the  belhgerent.     It  is  for  this  reason  that  Article  19  of 

1  See  Wehberg,  p.  419. 

*  See  Nowacki,  Die  Eitenbahnen  im  Kriege  (1906),  p.  126. 


SERVICES  TO  BELLIGERENTS         489 

Convention  v.  enacts  that  railway  material  coming 
from  the  territory  of  neutrals  shall  not  be  requisitioned 
or  used  by  a  belhgerent,  except  in  the  case  of,  and  to 
the  extent  required  by,  absolute  necessity.^ 

§  355.  Just  as  a  neutral  is  not  obliged  to  prevent  Transport 
his  merchantmen  from  carrying  contraband,  so  he  is  p"rt  of 
not  obhged  to  prevent  them  from  rendering  services  Neutral 
to  belhgerents  by  carrying,  in  the  way  of  trade,  enemy  chantmen 
troops,  and  the  Hke,  and  enemy  despatches.     Neutral  pHvafe 
merchantmen  rendering  such  services   to   belhgerents  ^eutrai 

o  o      _  Rolling 

do  so  at  their  own  risk  ;  for  these  are  unneutral  services,  stock. 
for  which  the  merchantmen  may  be  punished  '^  by  the 
belhgerents,  although  the  neutral  State  under  whose 
flag  they  sail  bears  no  responsibility  for  them  whatever. 

The  same  is  vahd  with  regard  to  rolhng  stock  belong- 
ing to  private  railway  companies  of  a  neutral  State. 
That  such  rolhng  stock  may  not  be  used  by  a  belh- 
gerent without  the  consent  of  the  companies  ow^ning  it, 
for  the  transport  of  troops,  war  material,  and  the  hke, 
except  in  the  case  of,  and  to  the  extent  required  by, 
absolute  necessity,  follows  from  Article  19  of  Conven- 
tion V.  If,  however,  a  private  railway  company  does 
give  its  consent,  and  if  its  rolhng  stock  is  used  for  war- 
hke  purposes,  it  acquires  enemy  character.  Article  19 
of  Convention  v.  does  not  apply,  and  the  other  belh- 
gerent may  seize  and  appropriate  it  as  though  it  were 
the  property  of  the  enemy  State. ^ 

§  356.  Information    regarding    mihtary    and    naval  informa- 
operations   may  be  given  and  obtained   in   so  many  regarding 
various  ways  that  several  cases  must  be  distinguished  : —  Military 

(1)  It  is  obvious  that  the  duty  of  impartiahty  in-  Opera - 
cumbent  upon  a  neutral  obhges  him  to  prevent  his  men-  *^"°^' 
of-war  from  giving  any  information  to  one  belhgerent 
concerning  the  naval  operations  of  the  other  belhgerent. 

^  See  below,  §  365.  ^  See  Nowacki,   Die   EiKenhahnen 

*  See  below,  §§  407-413.  im  Kriege  (1906),  p.  128. 


490  BELLIGERENTS   AND   NEUTRALS 

But  a  neutral  bears  no  responsibility  whatever  for 
private  vessels  sailing  under  his  flag  which  give  such 
information.  Such  vessels  run  the  risk,  however,  of 
being  punished  for  rendering  unneutral  service.^ 

(2)  It  is  hkewise  obvious  that  his  duty  of  impar- 
tiahty  must  prevent  a  neutral  from  giving  information 
to  a  belhgerent  concerning  the  war  through  his  diplo- 
matic envoys,  couriers,  and  the  like.^  But  the  question 
has  been  raised  whether  a  neutral  is  obhged  to  prevent 
couriers  ^  from  carrying  despatches  for  a  belhgerent 
over  his  neutral  territory.  I  beheve  the  answer  must 
be  in  the  negative,  at  least  so  far  as  those  couriers  are 
concerned  who  are  in  the  service  of  diplomatic  envoys, 
and  those  agents  who  carry  despatches  from  a  State  to 
its  head  or  to  diplomatic  envoys  abroad.  Since  they 
enjoy  '^  inviolabihty  for  their  persons  and  official  papers, 
a  neutral  cannot  interfere  so  as  to  find  out  whether 
they  are  carrying  information  to  the  disadvantage  of 
the  enemy. 

(3)  According  to  Article  8  of  Convention  v.,  *  a 
neutral  Power  is  not  bound  to  forbid  or  restrict  the 
employment,  on  behalf  of  belhgerents,  of  telegraph  or 
telephone  cables,  or  of  wireless  telegraphy  apparatus, 
whether  belonging  to  it,  or  to  companies,  or  to  private 
individuals.'  Since,  therefore,  everything  is  left  to 
the  discretion  of  the  neutral  concerned,  he  will  have 
to  take  the  merits  and  needs  of  every  case  into  con- 
sideration, and  act  accordingly.  But  so  much  is  certain, 
that  a  belhgerent  has  no  right  to  insist  that  neutrals 
should  forbid  or  restrict  such  employment  of  their  tele- 
graph wires,  etc.,  on  the  part  of  his  adversary.  On  the 
other  hand,  their  duty  of   impartiahty  must  compel 

^  See    below,    §§    409,    410,    and  messages  on  behalf  of  the  German 

Articles  45  and  40  of  the  unratified  envoy,  Count  Luxburg,  thereby  vio- 

Declaration  of  London.  lating  Swedish  neutrality  (see  A.J., 

-  During    the    World     War    the  xii.  (1918),  pp.  135-140). 

Swedish      minister     to     Argentina,  '  See  Calvo,  iv.  §  2640. 

Baron    Lowen,    transmitted    cipher  *  See  above,  vol.  i.  §§  405,  457. 


SERVICES  TO   BELLIGERENTS  491 

neutrals  to  prevent  the  despatch  from  their  territory 
of  wireless  messages  sent  to  enable  belligerent  cruisers 
outside  the  neutral  territorial  waters  to  watch  for,  and 
capture,  vessels  which  have  been  within  those  waters 
so  soon  as  they  depart,  or  any  other  wireless  messages 
through  the  sending  of  which  their  neutral  territory 
becomes  a  base  of  naval  or  mihtary  operations  for  one 
of  the  beUigerents.^ 

During  the  World  War,  in  order  to  discharge  the 
duties  so  laid  upon  them,  all  the  maritime  neutral 
States  of  importance  prevented  belhgerent  merchant- 
men in  their  ports  from  using  their  wireless  installa- 
tions. Thus  Sweden,  which  shortly  after  the  outbreak 
of  the  war  had  passed  a  law  prohibiting  vessels  in  Sw^edish 
ports  from  using  their  wireless  apparatus,  in  February 
1916,  in  consequence  of  violations  of  that  law  by  the 
German  vessel  Mecklenburg,  sealed  the  wireless  apparatus 
on  that  and  other  German  vessels  in  Swedish  ports. 
Again,  during  the  course  of  the  war,  the  United  States 
of  America  took  control  of  the  private  wireless  tele- 
graphy stations  which  had  been  erected  in  the  United 
States  before  the  war,  and  prevented  all  stations  from 
transmitting  cipher  messages.^ 

A  different  situation  arises  when  a  belhgerent  intends 
to  arrange  the  transmission  of  messages  through  a  sub- 
marine cable  laid  for  that  very  purpose  over  neutral 
territory,  or  through  telegraph  and  telephone  wires 
erected  for  that  purpose  on  neutral  territory.  This 
would  seem  to  be  an  abuse  of  neutral  territory,  and  the 
neutral  must  prevent  it.  Accordingly,  when  in  1870, 
during  the  Franco-German  War,  France  intended  to 
lay  a  telegraph  cable  from  Dunkirk  to  the  north  of 

^  See    Garner,    ii.     §    560,     who  States   were    sending    messages    to 

mentions    the     complaints     of    the  German     war-ships    in    the    South 

British    and    French    Governments  Atlantic  and  Pacific  Oceans, 
during  the  World  War,  that  wireless 

stations  in  various  Latin-Americau  *  See  Garner,  ii.  §  560. 


492  BELLIGERENTS   AND   NEUTRALS 

France — the  cable  to  go  across  the  Channel  to  England 
and  from  there  back  to  France — Great  Britain  refused 
her  consent  on  account  of  her  neutrahty.  Again  in 
1898,  during  war  between  Spain  and  the  United  States 
of  America,  when  the  latter  intended  to  land  at  Hong- 
Kong  a  cable  proposed  to  be  laid  from  Manila,  Great 
Britain  refused  her  consent.^ 

The  case  is  hkewise  different  when  a  belhgerent 
intends  to  erect  in  a  neutral  country,  or  in  a  neutral 
port  or  neutral  waters,  a  wireless  telegraphy  station, 
or  any  apparatus  intended  as  a  means  of  communica- 
tion with  belhgerent  forces  on  land  or  sea,  or  to  make 
use  of  any  installation  of  this  kind  estabhshed  by  him 
before  the  outbreak  of  war  for  purely  mihtary  purposes, 
and  not  previously  opened  for  the  services  of  the  pubhc 
generally.  According  to  Articles  3  and  5  of  Conven- 
tion V.  and  Article  5  of  Convention  xiii.,  a  neutral  is 
bound  to  prohibit  this.  "When  in  1904,  in  the  Russo- 
Japanese  War  during  the  siege  of  Port  Arthur,  the 
Russians  installed  an  apparatus  for  wireless  telegraphy 
in  Chifu,  and  communicated  thereby  with  the  besieged, 
this  constituted  a  violation  of  neutrahty. 

(4)  It  is  obvious  that  his  duty  of  impartiahty  must 
prevent  a  neutral  from  allowing  beUigerents  to  estabhsh 
intelhgence  bureaux  on  his  temtory.  On  the  other 
hand,  a  neutral  is  not  obliged  to  prevent  his  subjects 
from  giving  information  to  belhgerents,  be  it  by  letter, 
telegram,  telephone,  or  wireless  telegraphy.  In  par- 
ticular, a  neutral  is  not  obhged  to  prevent  his  subjects 
from  giving  information  to  belhgerents  by  wireless 
telegraphy  apparatus  installed  on  a  neutral  merchant- 
man. Such  individuals  run,  however,  the  risk  of  being 
punished  as  spies,  if  they  act  clandestinely  or  under 
false  pretences,^  and  the  vessel  is  hable  to  be  captured 
and  confiscated  for  rendering  unneutral  service. 

^  See  Lawrence,  War,  p.  219.  *  See  above,  §  159. 


VIOLATION   OF  NEUTRALITY  493 

On  the  other  hand,  newspaper  correspondents  making 
use  of  a  wireless  installation  on  a  neutral  merchantman 
for  the  purpose  of  sending  news  to  their  papers,^  may 
not  be  treated  as  spies  —  although  during  the  Russo- 
Japanese  War  Russia  threatened  to  treat  them  as 
such — and  the  merchantman  may  not  be  confiscated, 
although  belhgerents  need  not  allow  the  presence  of 
such  vessels  at  the  seat  of  war.  Thus,  during  the  Russo- 
Japanese  War,  the  Haimun,  a  vessel  fitted  with  a  wire- 
less telegraphy  apparatus  for  the  service  of  The  Times, 
was  ordered  away  by  the  Japanese,  although  dming 
the  first  five  weeks  of  the  war  they  had  made  no  objec- 
tion. But,  of  coiu'se,  an  individual  can  at  the  same 
time  be  a  correspondent  for  a  neutral  newspaper  and 
a  spy,  and  he  may  then  be  punished  for  espionage. 


VIII 

VIOLATION   OF  NEUTRALITY 

Hall,  §§  227-229— Lawrence,  §§  233,  238,  239— Phillimore,  iii.  §§  151a-1516 
—Taylor,  §§  630,  642— Wharton,  iii.  §§  402,  402a— Wheaton,  §§  429- 
433— Moore,  vii.  §§  1319-1328,  1334-1335— Bluntschli,  §§  778-782- 
Heffter,  §  146— Geffcken  in  HoUzendorff,  iv.  pp.  667-676,  700-709— 
Ullmann,  §  191— Bonfils,  No.  1476— Despagnet,  No.  697— Pradier- 
Fod6r6,  viii.  No.  3235— Rivier,  ii.  pp.  394-395— Calvo,  iv.  §§  2654-2666 
— Fiore,  iii.  Nos.  1567-1570 — Martens,  ii.  §  138 — Kleen,  i.  §  25 — Dupuis, 
Nos.  332-337 — Einicke,  Rechte  und  Pflichten  der  neutralen  Mdchte  im 
Seekrieg  (1912),  pp.  326-364— Schramm,  pp.  79-82— Garner,  ii.  §  562— 
Harris  in  the  Proceedings  of  the  American  Society  of  International  Law, 
ix.  (1915),  pp.  31-39. 

§  357.  Many  writers  who  speak  of  violation  of  neu-  Violation 
trahty  only  treat  under  this  head  \4olations  of  the  duty  xeutrai- 
of  impartiahty  incumbent  upon  neutrals.     Indeed  such  1*/  ^"  *^^ 

.    1       .  ,  .f  1  f      •    1  r  Narrower 

Violations  only  are  meant,  if  one  speaks  of  violation  of  and  in 

the  Wider 
Sense  of 
^  See  Lawrence,    War,  pp.  85-92.        Higgins,  War  and  the  Private  Citizen  ^jjg  Term 

On  the  position  of  newspaper  corre-        (1912),  pp.  91-112,  and  in  Z.V.,  \i. 

spondents    in    naval    warfare,   as  it        (1912),  pp.  19-28,  and  the  literature 

was    before    the    World    War,    see       and  cases  there  cited. 


494  BELLIGERENTS   AND   NEUTRALS 

neutrality  in  the  narrower  sense  of  the  term.  How- 
ever, it  is  necessary  for  obvious  reasons  to  discuss,  not 
only  violations  of  the  duty  of  impartiahty  of  neutrals, 
but  violations  of  all  duties  deriving  from  neutrahty, 
whether  they  are  incumbent  upon  neutrals  or  upon 
belhgerents.  In  the  wider  sense  of  the  term,  \dola- 
tion  of  neutrahty  comprises,  therefore,  every  perform- 
ance or  omission  of  an  act  contrary  to  the  duty  of  a 
neutral  towards  either  belligerent  as  well  as  contrary 
to  the  duty  of  either  belhgerent  towards  a  neutral. 
Everywhere  m  this  treatise  the  term  is  used  in  its  wider 
sense. 

Violations  of  neutrahty  on  the  part  of  belhgerents 
must  not  be  confounded  with  violations  of  the  laws  of 
war,  by  which  subjects  of  neutral  States  suffer  damage. 
If,  for  instance,  an  occupant  levies  excessive  contribu- 
tions from  subjects  of  neutral  States  domiciled  in  enemy 
country  in  contravention  of  Article  49  of  the  Hague 
Regulations,  this  is  a  violation  of  the   laws  of   war, 
for  which,  according  to  Article  3  of  Convention  iv.,  he 
must  pay  compensation ;    but  it  is  not  a  violation  of 
neutrahty. 
Violation      §  358.  Mere  violation  of  neutrahty  must  not  be  con- 
disSnc-*  founded  with  the  ending  of  neutrahty,^  for  neither  a 
tion  to      violation  on  the  part  of  a  neutral  ^  nor  a  mere  violation 

K  n  rl    nf 

Neu-  on  the  part  of  a  belhgerent  if  so  facto  brings  neutrahty 
trahty.  ^^  ^^  ^^^^  j|  corrcctly  viewed,  the  condition  of  neu- 
trahty continues  to  exist  between  a  neutral  and  a  belh- 
gerent in  spite  of  a  violation  of  neutrahty.  A  violation 
of  neutrahty  is  nothing  more  than  a  breach  of  a  duty 
deriving  from  the  condition  of  neutrahty.  This  apphes 
not  only  to  violations  of  neutrahty  by  neghgence,  but 
also  to  intentional  violations.    Even  in  an  extreme  case, 

^  See  above,  §  312.  the  violation  of  the  duty  of  imparti- 

ality incumbent  upon  neutrals  and 
*  But  this  is  almost  everywhere       the  ending  of  neutrality  is  usually 
asserted,  as  the  distinction  between       not  made. 


VIOLATION  OF  NEUTRALITY  495 

in  which  the  violation  of  neutraUty  is  so  great  that  the 
offended  party  considers  war  the  only  adequate  measure 
in  answer  to  it,  it  is  not  the  violation  which  brings 
neutrahty  to  an  end,  but  the  determination  of  the 
offended  party.  For  there  is  no  violation  of  neutrahty 
so  great  as  to  oblige  the  offended  party  to  declare  war 
in  answer  to  it,  such  party  always  having  the  choice 
whether  he  will  keep  up  the  condition  of  neutrahty  or 
not. 

But  this  apphes  only  to  mere  violations  of  neutrahty, 
and  not  to  a  declaration  of  war  or  hostilities.  Hostihties 
are  acts  of  war,  and  bring  neutrahty  to  an  end  ;  ^  and 
a  declaration  of  war  brings  neutrahty  to  an  end  even 
before  the  outbreak  of  hostihties. 

§  359.  Violations  of  neutrahty,  whether  committed  Conse- 
by  a  neutral  against  a  belhgerent  or  by  a  belligerent  viok-^^  ° 
against    a    neutral,    are    international    dehnquencies.^  ^°"^  ^^ 
They  may  at  once  be  repulsed,  and  the  offended  party  traiity. 
may  require  the  offender  to  make  reparation,  and,  if 
this  is  refused,  may  take  such  measures  as  he  thinks 
adequate  to  exact  the  necessary  reparation.^    If  the 
violation  is  only  shght  and  unimportant,  the  offended 
State  will  often  merely  complain.     If,  on  the  other  hand, 
the  violation  is  very  substantial  and  grave,  the  offended 
State  will  perhaps  at  once  declare  that  it  considers 
itself  at  war  with  the  offender.     In  such  a  case,  it  is  not 
the  violation  of  neutrahty  which  brings  neutrahty  to 
an  end,  but  the  declaration  of  the  offended  State  that 
it  considers  the  violation  to  be  of  so  grave  a  character 
as  to  obhge  it  to  regard  itself  at  war  with  the  offender. 

That  a  violation  of  neutrahty,  hke  any  other  inter- 
national dehnquency,  can  only  be  committed  by  mahce 
or  culpable  neghgence,^  and  that  it  can  be  committed 

^  They   have    been    characterised  *  See  above,  vol.  i.  §  151. 

in  contradistinction   to  mere  viola-  '  See  above,  vol.  i.  §  156. 

tions  above  in  §  320.  *  See  above,  vol.  i.  §  154. 


496  BELLIGERENTS   AND  NEUTRALS 

through  a  State  refusing  to  comply  with  the  conse- 
quences of  its  *  vicarious  '  responsibihty  for  acts  of  its 
agents  or  subjects,^  is  a  matter  of  course.  Thus,  if  a 
belhgerent  fleet  attacks  enemy  vessels  in  neutral  terri- 
torial waters  without  an  order  from  its  Government, 
the  latter  bears  '  vicarious '  responsibihty  for  this 
violation  of  neutral  territory  by  its  fleet.  If  the  Govern- 
ment concerned  refuses  to  disown  the  act  of  its  fleet, 
and  to  make  the  necessary  reparation,  this  '  vicarious  ' 
responsibihty  turns  into  '  original '  responsibihty,  for  a 
case  of  violation  of  neutrahty  and  an  international 
dehnquency  has  then  arisen.  The  same  is  vahd  if  an 
agent  of  a  neutral  State,  without  an  order  of  his  Govern- 
ment, commits  such  an  act  as  would  constitute  a  viola- 
tion of  neutrahty  in  case  it  were  ordered  by  the  Govern- 
ment ;  for  instance,  if  the  head  of  a  province  of  a  neutral 
State,  without  authorisation  from  his  Government, 
allows  forces  of  a  belhgerent  to  march  through  the 
neutral  province. 
Neutrals  §  360.  It  is  entirely  within  the  discretion  of  a  beUi- 
qSesceTn  g^rcut  whether  he  will  acquiesce  in  a  violation  of  neu- 
vioia-  trahty  committed  by  a  neutral  in  favour  of  the  other 
Neu-  belhgerent.  On  the  other  hand,  a  neutral  may  not 
com'-^^  exercise  the  same  discretion  regarding  a  violation  of 
"fitted  by  neutrahty  committed  by  one  belhgerent  and  detri- 
gerent.  mcutal  to  the  other.  His  duty  of  impartiahty  rather 
obhges  him,  in  the  first  instance,  to  prevent  with  the 
means  at  his  disposal  the  belhgerent  concerned  from 
committing  such  a  violation  ;  e.g.  to  repulse  an  attack 
by  men-of-war  of  a  belhgerent  on  enemy  vessels  in 
neutral  ports.  Thus  Article  3  of  Hague  Convention 
XIII.  enacts  :  '  When  a  ship  has  been  captured  in  the 
territorial  waters  of  a  neutral  Power,  such  Power  must, 
if  the  prize  is  still  within  its  jurisdiction,  employ  the 
means  at  its  disposal  to  release  the  prize  with  its  officers 

^  See  above,  vol.  i.  §  150. 


VIOLATION   OF   NEUTRALITY  497 

and  crew,  and  to  intern  the  prize  crew/  But  in  case 
he  could  not  prevent  and  repulse  a  violation  of  his 
neutrahty,  his  same  duty  of  impartiahty  obliges  him 
to  exact  due  reparation  from  the  offender  ;  ^  for  other- 
wise he  would  favour  the  one  party  to  the  detriment  of 
the  other.  If  a  neutral  neglects  this  obhgation,  he 
himself  thereby  commits  a  violation  of  neutrahty,  for 
which  he  may  be  made  responsible  by  a  belligerent  who 
has  suffered  through  the  violation  of  neutrahty  com- 
mitted by  the  other  belhgerent  and  acquiesced  in  by 
him.2  For  instance,  if  belhgerent  men-of-war  seize 
enemy  vessels  in  the  ports  of  a  neutral,  and  if  that 
neutral,  who  could  not  or  did  not  prevent  this,  exacts 
no  reparation  from  the  belhgerent  concerned,  the  other 
party  may  make  the  neutral  responsible  for  the  losses 
sustained. 

§  361.  Some    writers  ^    maintain    that    a    neutral   is  Cases  of 
freed  from  responsibility  for  a  violation  of  neutrahty  General 
committed  by  a  belhgerent  in  attacking  enemy  forces  ^^"^-     ^ 
m  neutral  territory,  if  the  forces  attacked,  instead  of  The 
trusting  for  protection  or  redress  to  the  neutral,  defend 
themselves  against  the  attack.     This  rule  is  adopted 
from  the  arbitral  award  in  the  case  of  The  General 
Armstrong.     In  1814,  during  war  between  Great  Britain 

^  See  Articles  25  and  26  of  Con-  captured  the  Freden  and  three  other 

vention    xiii.     This   duty  is   nowa-  Swedish    vessels  in   the    Norwegian 

days    universally    recognised  ;     but  harbour  of  Oster-Risoer  (see  Ortolan, 

before  the  nineteenth  centurj-  it  did  ii.  pp.  411-418). 

not   exist,    although   the    rule    that  -  It  has  been  pointed  out  above, 

belligerents   must  not  commit   hos-  §  319,   that  in  case  one  belligerent 

tilities  on  neutral  territory,  and  in  resorts   to   measures  which   aim   at 

particular     in     neutral     ports     and  suppressing  intercourse  between  an- 

waters,  was  well  recognised.     That,  other  belligerent  and  neutrals  and 

in  spite  of  its  recognition,  this  rule  the    neutrals    do    not    prevent   the 

was  in  the  eighteenth  century  fre-  carrjung  out  of  such  measures,  the 

quently  infringed  by  commanders  of  injured    belligerent    is    justified    in 

belligerent  tieets,  may  be  illustrated  resorting  to  reprisals  and  in  himself 

by  many  cases.     Thus,  for  instance,  preventing  intercourse  between  neu- 

in  1793,  the  French  frigate  Modesie  trals  and  the  first-mentioned  belli- 

was  captured  in  the  harbour  of  Genoa  gerent. 

by  two  British  men-of-war  (see  Hall,  ^  See,  for  instance,   Hall,    §  228, 

§  220)  :    and    in    1801,    during   war  and  (Tettcken  in  Holtzendorff,  iv.  p. 

against   Sweden,    a   British    frigate  701.                            ^ 

VOL.  IL  2  I 


498  BELLIGERENTS   AND  NEUTRALS 

and  the  United  States  of  America,  the  American  privateer 
General  Armstrong,  lying  in  the  harbour  of  Fayal,  an 
island  belonging  to  the  Portuguese  Azores,  defended 
herself  against  an  attack  by  an  EngHsh  squadron,  but 
was  nevertheless  captured.  The  United  States  claimed 
damages  from  Portugal  because  the  privateer  was 
captured  in  a  neutral  Portuguese  port.  Negotiations 
went  on  for  many  years,  and  the  parties  finally  agreed 
in  1851  upon  arbitration  by  Louis  Napoleon,  then 
President  of  the  French  Repubhc.  In  1852  Napoleon 
gave  his  award  in  favour  of  Portugal,  maintaining  that, 
although  the  attack  on  the  privateer  in  neutral  waters 
comprised  a  violation  of  neutrahty,  Portugal  could  not 
be  made  responsible,  because  the  vessel  chose  to  defend 
herself,  instead  of  demanding  protection  from  the  Portu- 
guese authorities.^  It  is,  however,  not  at  all  certain 
that  the  rule  laid  down  in  this  award  will  find  general 
recognition  in  theory  and  practice.^ 

However  that  may  be,  cases  similar  to  that  of  The 
General  Armstrong  occurred  during  the  World  War. 
Thus  in  March  1915  the  German  cruiser  Dresden 
sought  refuge  within  the  territorial  waters  of  Chih  near 
the  island  of  Juan  Fernandez,  and  asked  to  be  allowed 
to  remain  there  for  eight  days  in  order  to  effect  repairs. 
The  request  was  refused,  and  the  Dresden  was  ordered 
to  depart  within  twenty-four  hours.  However,  she 
did  not  depart,  and  received  notification  that  she  was 
to  be  interned.  Meanwhile  two  British  cruisers,  Kent 
and  Glasgow,  came  up  and  opened  fire.  The  Dresden 
hoisted  a  flag  of  truce,  and  despatched  one  of  her  officers 
to  inform  the  Glasgow  that  she  was  in  neutral  terri- 
torial waters.     In  reply,  the  British  squadron  called 

^  See  Moore,  Arhitrationa,  ii.  pp.  similar  to  that  of  The  General  Arm- 

1071-1132;   Calvo,  iv.  §  2662;    and  strong,   is  discussed  above  in  §  320 

Dana's  note  208  in  Wheaton,  §  429.  (2).     That  no  ^^olation  of  neutrality 

^  The  case  of  The  Reshitelni,  which  took  place  in  the  case  of  The  Variag 

occurred  in  1904,  during  the  Russo-  and   The  Korietz,  is  shown  above  in 

Japanese    War,    and    is    somewhat  §  320  (1). 


VIOLATION   OF   NEUTRALITY  499 

upon  her  to  surrender  under  a  threat  of  destruction, 
whereupon  she  blew  herself  up  and  sanlc.^  Again,  Hall 
mentions  a  case  in  which  a  British  submarine  which  had 
run  aground  in  Danish  territorial  waters  was  there 
fired  upon  by  a  German  destroyer.^ 

§  362.  It  is  obvious  that  the  duty  of  a  neutral  not  Mode  of 
to  acquiesce  in  violations  of  neutrality  conmiitted  by|Jfp^J.°^ 
one  belligerent  to  the  detriment  of  the  other  obliges  <T'tion 
him  to  repair,  so  far  as  he  can,  the  result  of  such  wrong-  liferents 
ful  acts.     Thus,  he  must  h berate  ^  a  prize  taken  in  his  {°onI^of  * 
neutral  waters,  or  prisoners  made  on  his  territory,  and  Neu- 
the  hke.     In  so  far,  however,  as  he  camiot,  or  cannot 
sufficiently,  undo  the  wrong  done,  he  must  exact  repara- 
tion from  the  offender.    Now,  no  general  rule  can  be 
laid  down  regarding  the  mode  of  exacting  such  repara- 
tion, since  everything  depends  upon  the  merits  of  the 
individual  case.     However,  as  regards  the  capture  of 
enemy  vessels  in  neutral  waters,  a  practice  has  grown 
up  which  must  be  considered   binding,   according  to 
which  the  neutral  must  claim  the  prize,  and  eventually 
damages,   from   the   belHgerent   concerned,   and   must 
restore  her  to  the  other  party.     Thus  in  1800,  during 
war  between  Great  Britain  and  the  Netherlands,  Prussia 
claimed  in  the  British  Prize  Court  the  Twee  Gebroeders,^ 
a  Dutch  vessel  captm'ed  by  the  British  cruiser  L'Espiegle 
in  the  neutral  maritime  belt  of  Prussia.    Sir  WiUiam 
Scott  ordered  the  restoration  of  the  vessel,  but  refused 
costs  and  damages,  because  the  captor  had  not  violated 
Prussian  neutrahty  intentionally  but  only  by  mistake 
and   misapprehension.     Thus   again,    in    1805,    during 
war  between  Great  Britain  and  Spain,  the  United  States 

'  Details  from  Garner,  ii.  §  562.  *  3  C.  Rob.  162.     This  case  is  all 

See  also  Alvarez,  La  grande  Guerre,  the  more  important  as  the  capture 

etc.  (1915),   p.  227,  and  documents  was  really  made  outside  the  neutral 

in  A.J.,  X.  (1916),  Supplement,  pp.  maritime   belt  by  boats   sent  from 

72-76.  L'Espiegle.      L'Espiegle    was,    how- 

-  7th  ed.  p.  663.  ever,    herself    wthin    the    neutral 

'  See  Article  3  of  Convention  xiii.  maritime  belt. 


500  BELLIGERENTS   AND  NEUTRALS 

claimed  in  the  British  Prize  Court  the  Anna,^  a  Spanish 
vessel  captured  by  the  Enghsh  privateer  Minerva  within 
her  neutral  maritime  belt.  Thus,  fm'ther,  in  1864, 
during  the  American  Civil  War,  when  the  Confederate 
cruiser  Florida  was  captured  by  the  Federal  cruiser 
Wachusett  in  the  neutral  Brazihan  port  of  Bahia,  Brazil 
claimed  the  prize.  As  the  prize  had  sunk  while  at  anchor 
in  Hampton  Koads,  she  could  not  be  restored  ;  but  the 
United  States  expiated  ^  the  violation  of  neutrahty 
committed  by  her  cruiser  by  court-martialhng  the  com- 
mander, by  dismissing  her  consul  at  Bahia  for  having 
advised  the  capture,  and,  finally,  by  sending  a  man-of- 
war  to  the  spot  where  the  violation  of  neutrahty  had 
taken  place  for  the  special  pm'pose  of  dehvering  a 
solemn  salute  to  the  Brazihan  flag. 

Many  similar  cases  occm-red  during  the  World  War. 
Thus,  in  July  1916,  the  British  steamer  Adams  was 
captured  by  a  German  torpedo  boat  in  Swedish  terri- 
torial waters,  and  taken  to  the  German  port  of  Swine- 
munde ;  Sweden  claimed  the  prize,  and  Germany 
apologised,  and  brought  the  vessel  back  to  the  spot 
where  she  had  been  captured,  and  set  her  free.^  Again, 
when  the  German  vessels  Pellworm  ^  and  others  were 
captured  by  British  cruisers  in  July  1917,  in  Dutch 
territorial  waters,  the  Dutch  Government  claimed  them 
in  the  British  Prize  Court ;  similarly,  Norway  claimed 
the  release  of  the  Dusseldorf^  and  the  Valeria,^  German 
vessels  which  had  been  captured  by  British  forces  in 
Norwegian  territorial  waters. 

It  is,  however,  only  the  neutral  State  whose  neutrahty 
has  been  violated,  and  not  the  owner  of  the  vessel, 
who  can,  at  any  rate  according  to  British  practice, 

^  5C.  Rob.  373.    See  above,  vol.  i.  *  [1920]  P.  347. 

^  ^2^t*     Ai  ••    fi  loo^  *  (1919)  3  B.  andC.  P.  C.  466,  and 

See  Moore,  vii   §  1334.  y^^  rj.^  j^j    29,  1920. 

^  The    Westrmnster   Gazette,  July  '        •'       ' 

21,  1916.  *  [1920]  P.  81  ;  37  T.  L.  R.  337. 


VIOLATION   OF  NEUTRALITY  501 

successfully  prosecute  a  claim  for  the  release  of  the 
vessel  before  the  Prize  Court. ^ 

§  363.  Apart  from  intentional  violations  of  neu-  Negii- 
trahty,  a  neutral  can  be  made  responsible  only  for  such  thepartof 
acts  favouring  or  damaging  a  belhgerent  as  he  could  ^^^utrais.j 
by  due  dihgence  have  prevented,  and  which  by  culpable 
neghgence  he  failed  to  prevent.  It  is  by  no  means 
obhgatory  for  a  neutral  to  prevent  such  acts  under  all 
circumstances  and  conditions.  This  is  in  fact  im- 
possible, and  it  becomes  more  obviously  so,  the  larger 
a  neutral  State  and  the  longer  its  boundary  hues. 
So  long  as  a  neutral  exercises  due  dihgence  for  the 
purpose  of  preventing  such  acts,  he  is  not  responsible 
in  case  they  are  nevertheless  performed.  However,  the 
meaning  of  the  term  due  diligence  has  become  contro- 
versial on  account  of  the  definition  proffered  by  the 
United  States  of  America  in  interpreting  the  Three 
Rules  of  Washington,  and  adopted  by  the  Geneva  Court 
of  Arbitration.^  According  to  that  interpretation  the 
due  diligence  of  a  neutral  must  he  in  pro'portion  to  the 
risks  to  which  either  belligerent  may  he  exposed  from 
failure  to  fulfil  the  obligations  of  neutrality  on  his  part. 
Had  this  interpretation  been  generally  accepted,  the 
most  oppressive  obhgations  would  have  become  in- 
cumbent upon  neutrals.  But  no  such  general  accept- 
ance has  taken  place.  The  fact  is  that  due  diligence  in 
International  Law  can  have  no  other  meaning  than 
it  has  in  Municipal  Law.  It  means  such  diligence  as  can 
reasonably  he  expected  when  all  the  circumstances  and 
conditions  of  the  case  are  taken  into  consideration. 

Be  that  as  it  may,  the  Second  Hague  Conference  took 
a  step  which  excluded  for  the  future  the  continuation 
of  the  controversy  regarding  the  interpretation  of  due 

1  See  The  Bangor,  {IQIQ)  2B.  &nd  177;    The  Sir   William  Peel.   (1866) 

C.  P.  C.    206,    and    the    American  5  Wall.  517;    The  Adela,   (1867)  6 

cases  of  The  Anne,  (1818)  3  Wheaton  Wall.  266. 

435  ;    The   Lilla,   (1862)   2    Sprague  -  See  above,  §  335. 


502  BELLIGERENTS   AND  NEUTRALS 

diligence,  for  Articles  8  and  25  of  Convention  xni., 

instead  of  stipulating  due  diligence  on  the  part  of  neutrals, 

stipulated  tJie  emfloyment  of  the  means  at  their  disposal. 

^fV^^         §  363a.  In  order  to  defend  themselves  against  possible 

of  Sub-  •1,-  ri-  1  •  1 

marine  violations  01  their  neutral  territory,  neutrals  may  lay 
MinlTby  automatic  contact  mines  off  their  coasts.  If  they  do 
Neutrals,  this,  they  must,  according  to  Article  4  of  Convention 
VIII.,  observe  the  same  rules  and  take  the  same  pre- 
cautions as  are  imposed  upon  belligerents.^  Moreover, 
they  must,  according  to  paragraph  2  of  Article  4  of 
Convention  viii.,  give  notice  in  advance  to  mariners  of 
the  place  where  automatic  contact  mines  have  been 
laid,  and  this  notice  must  be  communicated  at  once  to 
the  Governments  through  diplomatic  channels. 

Convention  viii.  is  quite  as  unsatisfactory  in  its  rules 
concerning  mines  laid  by  neutrals  as  in  its  rules  con- 
cerning mines  laid  by  beUigerents,  and  the  danger  to 
neutral  shipping  created  by  mines  laid  by  neutrals  is 
very  great.  However,  when  Article  4  speaks  of  the 
laying  of  contact  mines  by  neutral  Powers  off  their 
coasts,  without  hmiting  such  operations  to  within  the 
three-mile-wide  maritime  belt,  it  does  not  intend  to 
give  neutrals  a  right  to  lay  them  outside  the  belt.^  For 
it  is  expressly  stated  :  ^  '  Mais  il  paraitrait  entendu  que 
Tabsence  de  toute  disposition  fixant  les  hmites  dans 
lesquelles  les  neutres  peuvent  placer  des  mines  ne  devra 
pas  etre  interpretee  comme  etabhssant,  pour  les  neutres, 
le  droit  de  placer  des  mines  en  pleine  mer.' 

A  neutral,  in  laying  mines  within  his  territorial 
waters,  must  have  regard  to  the  duty  of  impartiahty 
incumbent  upon  him,  and  must  consider  whether  his 
mine-field   favours   one   belhgerent   at  the  expense  of 

*  See  above,  §  182a.  '  Regleraentation    internationale   de 

^  As  was  erroneously  stated  in  the  I'Usage   des  Mines   sous-marines  et 

second  edition  of  this  work.  des   Torpilles '    of    the   Institute   of 

^  See  Deuxieme  Conference,  Aotes,  International  Law  (Annuaire,  xxiv. 

iii.  p.  456.     See  also  Article  6  of  the  (1911),  p.  302). 


RIGHT   OT'   ANGARY  503 

another.  On  July  14,  191G,  during  the  World  .War, 
Sweden  declared  that  the  Kogrund  Channel,  leading 
to  the  Baltic  Sea,  was  to  be  closed  by  mines,  and  that 
only  Swedish  shipping  might  pass  through  it.  The 
channel  was  within  Swedish  territorial  waters.  The 
effect  of  this  action  was  to  force  Alhed  ships  entering 
or  leaving  the  Baltic  to  pass  through  the  outer  channels, 
which  were  closely  patrolled  by  German  warships. 
Thus  while  German  ships  had  access  to  both  the  east 
and  west  coasts  of  Sweden,  Russia  was  confined  to  the 
east  coast  and  the  other  Alhed  Powers  to  the  west, 
Sweden  having  completed  the  German  barrier  between 
them.     The  Alhed  Powers  protested. 


IX 

RIGHT  OF  ANGARY 

Grotius,  iii.  c.  17,  §  1  (see  also  ii.  c.  2,  §§  6-9)— Vattel,  ii.  §  121— Hall,  §  278 
—Lawrence,  §  233— Westlake,  ii.  pp.  131-134— Phillimore,  iii.  §  29— 
Halleck,  i.  p.  519— Taylor,  §  641— Walker,  §  69— Bluntschli,  §  795a— 
Hefifter,  §  150 — Bulmerincq  in  Holtzendorff,  iv.  pp.  98-103 — GefFcken  in 
Holtzendorff,  iv.  pp.  771-773— Ullniann,  §  192— Bonfils,  No.  1490— 
Despagnet,  No.  494 — M6rignhac,  iii".  pp.  586-591 — Rivier,  ii.  pp.  327- 
329— Kleen,  ii.  §§  165,  230— Perels,  §  40— Hautefeuille,  iii.  pp.  416- 
426— Holland,  War,  Nos.  139-140— i.and  Warfare,  §§  507-510— Al- 
brecht,  Requisitionen  von  n^jttralem  Privateigenthum,  insbesondere  von 
Schifen  (1912),  pp.  24-66— Wehberg,  p.  70— Borchard,  §  104— Garner, 
i.  §§118-119. 

§  364.  Under  the  term  jus  angariae}  belhgerents  who  The 
had  not  sufficient  vessels  often  claimed  and  practised  r"  ^Tof 
in  former  times  the  right  to  lay  an  embargo  on,  and  Angary, 
seize,  neutral  merchantmen  in  their  harbours,  and  to 
compel   them   and    their   crews   to    transport   troops, 
munitions,  and  provisions  to  certain  places  on  payment 

^  The  term  angaria,  which  in  ayyapos  for  messenger.  Jua  angariae 
TaedisdvaMjSLtin  me&ns  post-station,  is  would  therefore  literally  mean  a 
9,  derivation  from  the  Greek  term       right  of  transport, 


504  BELLIGERENTS   AND  NEUTRALS 

of  freight  in  advance.^  This  practice  arose  in  the 
Middle  Ages,^  and  was  much  resorted  to  by  Louis  xiv. 
of  France.  To  save  the  vessels  of  their  subjects  from 
seizure  under  this  right  of  angary,  States  began  in  the 
seventeenth  century  to  conclude  treaties  under  which 
each  renounced  the  right  with  regard  to  the  vessels  of 
the  other.  And  so  the  right  fell  into  disuse  during  the 
eighteenth  century,  and  there  is  no  case  in  which  it  is 
reported  to  have  been  exercised  during  the  nineteenth 
century.  Nevertheless,  many  writers  ^  assert  that  it  is 
not  obsolete,  and  might  be  exercised  eveniin  this  twentieth 
century.  They  do  this  because,  even  during  the  nine- 
teenth century,  some  States  concluded  treaties  *  con- 
taining articles  which  provided  for  compensation  in 
case  this  right  of  angary  should  be  exercised  by  one  of 
the  contracting  parties.  On  the  other  hand,  there  is 
evidence  that  the  right  is  contested.  A  number  of 
writers  ^  object  to  it.  Article  39  of  the  '  E^glement  sur 
le  Regime  legal  des  Navires  dans  les  Ports  etrangers  ' 
adopted  by  the  Institute  of  International  Law  ^  rejects 
it :  '  Le  droit  d'angarie  est  supprime.  .  .  .'  The  King's 
Regulations  and  Admiralty  Instructions  of  1908  (No. 
494)  contain  the  following  rules  under  the  heading, 
*  Coercion  of  a  British  ship  ' :  '  If  any  British  merchant 
ship,  the  nationahty  of  which  is  unquestioned,  should 
be  coerced  into  the  conveyance  of  troops  or  into  taking 
part  in  other  hostile  acts,  the  Senior  Naval  Officer, 
should  there  be  no  diplomatic  or  consular  authority 
at  the  place,  is  to  remonstrate  with  the  local  authorities 
and  take  such  other  steps  to  assure  her  release  or  exemp- 

^  See  above,  §  40.  •*  See  Albrecht,  op.  cit.,  pp.  34-37. 

^  On  the  origin  and  development  5  ^         j^r    instance,    Bulmerincq 

of  the  JUS  angarme,   see  Albrecht,  -^     Holtzendorff,     iv.     pp.     98-103] 

op   ««.,  pp.  24-d7.  Lawrence,     §    233;     Kleen,     ii.     § 

•*  See,  for  instance,  rhillimore,  111.  ip'i 
§  29;    Calvo,  iii.   §  1277;     Heffter, 

§  150;   Perela,   §  40;    Rivier,  ii.   p.  *  See    Annuaire,    xvii.    (1898),   p. 

328  ;  Despagnet,  No.  494.  284. 


RIGHT   OF   ANGARY  505 

tion,  as  the  case  may  demand,  and  as  may  be  in  accord- 
ance with  these  Regulations.' 

Considering  that  no  case  of  the  nse  of  this  right  of 
angary  happened  in  the  nineteenth  century,  and  that 
International  Law  concerning  the  rights  and  duties  of 
neutrals  became  much  more  developed  during  the 
eighteenth  and  nineteenth  centuries,  in  the  two  pre- 
ceding editions  of  this  work  I  ventured  the  assertion 
that  this  right  of  angary  '  is  now  probably  obsolete/ 
However,  although  no  real  case  occurred  during  the 
World  War — the  requisitioning  of  Dutch  ships  by  the 
Alhes  in  March  1918  being  a  case  of  the  modern  right 
of  angary  as  discussed  below  ^ — that  war  has  shown 
that  belHgerents  will  not  easily  renounce  the  use  of 
any  right  unless  it  is  absolutely  clear  that  it  does  not 
exist,  or  no  longer  exists.  For  this  reason  it  cannot 
with  certainty  be  said  that  the  right  is  obsolete. 

The  requisitioning  during  the  World  War  of  some 
Swedish  and  Dutch  steamers  lying  in  Enghsh  and 
French  harbours,  against  which  the  Swedish  and  Dutch ^ 
Governments  protested,  had  nothing  to  do  with  the 
right  of  angary,  whatever  may  have  been  the  merits 
of  the  case.  The  British  Government  did  indeed 
requisition  a  number  of  Swedish  ships — the  Sphinx, 
the  Bellgrove,  the  Phyllis,  and  the  Cremona, — and  of 
Dutch  ships — the  Vembergen,  Kelhergen,  and  others, — 
and  paid  compensation  for  their  use.  But  the  pubhc 
statement  made  by  the  British  Government  on 
October  11,  1917,  did  not  base  this  requisitioning 
upon  the  right  of  angary.^  '  The  tonnage  at  the  dis- 
posal of  H.M.  Government,'  so  runs  the  statement, 
'has  been  increased  by  a  decision,  which  has  recently 

^  §  365.  the  correspondence  with  the  Dutch 

^-  Pari.     Papers,  Misc.,     No.    5       Government  which  do  seek  to  justify 

MQlfi^   rA    SQSft  tli^    requisitioning    by   reierence   to 

(lyiS),  K.a.  sysD.  ^^^  ^^^^^  ^^  angary,  though  the  term 

'  There  are,  however,  passages  in       is  not  used. 


506  BELLIGERENTS   AND  NEUTRALS 

been  taken,  to  utilise  in  the  Government  service  British- 
owned,  or  mainly  British-owned,  ships  which  are  in 
British  ports,  but  which  have  hitherto  sailed  under 
neutral  flag.  As  the  German  Government  has  by  its 
prize  court  regulations  decided  that,  notwithstanding 
the  neutral  flag,  it  may  treat  these  vessels  as  British, 
it  is  necessary  in  order  to  protect  British  capital  in- 
vested in  these  ships  that  they  should  fly  the  British 
flag  and  be  armed  for  their  defence.'  ^ 

Be  that  as  it  may,  the  right  of  angary  not  only 
empowers  a  belhgerent  to  requisition  neutral  sliifs  for 
mihtary  purposes,  but  also  to  compel  the  neutral  crews 
to  render  services  by  which  they  acquire  enemy  char- 
acter. 
The  §  365.  In  contradistinction  to  tliis  original  right  of 

Right  of  angary,  the  modern  right  of  angary  is  a  right  of  beUi- 
Angary.  ggjgj^^s  ^q  (Jestroy,  or  use,  in  case  of  necessity,  for  the 
purpose  of  offence  and  defence,  neutral  property  on 
their  territory,  or  on  enemy  territory,  or  on  the  open 
sea.  This  modern  right  of  angary  does  not,  as  did  the 
original  right,  empower  a  belligerent  to  compel  neutral 
individuals  to  render  services,  but  only  extends  to 
neutral  property.  In  case  property  of  subjects  of 
neutral  States  is  vested  with  enemy  character,^  it  is 
not  neutral  property  in  the  strict  sense  of  the  term 
'  neutral,'  and  all  the  rules  respecting  appropriation, 
utihsation,  and  destruction^  of  enemy  property  obvi- 
ously apply  to  it.  The  object  of  the  right  of  angary 
is,  therefore,  either  such  property  of  subjects  of  neutral 
States  as  retains  its  neutral  character  from  its  temporary 
position  on  belligerent  territory,  and  which  therefore  is 
not  vested  with  enemy  character,  or  such  neutral  property 
on  the  open  sea  as  has  not  acquired  enemy  character.  All 
sorts  of  neutral  property,  whether  it  consists  of  vessels 

1  The  Times,  October  12,  1917.  ^  See  the  case  of   William  Hard- 

*  See  above,  §  90.  man,  above,  §  170  n. 


1 


RIGHT  OF   ANGARY  507 

or  other  ^  means  of  transport,  or  arms,  ammunition, 
provisions,  or  other  personal  property,  may  be  the 
object  of  the  right  of  angary,  provided  it  is  serviceable 
to  military  ends  and  wants.  The  conditions  under 
which  the  right  may  be  exercised  are  the  same  as  those 
under  which  private  enemy  property  may  be  utihsed 
or  destroyed ;  but  in  every  case  the  neutral  owner 
must  be  fully  indemnified.^ 

A  remarkable  case  ^  happened  in  1871  during  the 
Franco-German  War.  The  Germans  seized  some  British 
coal- vessels  lying  in  the  river  Seine  at  Duclair,  and  sank 
them  for  the  purpose  of  preventing  French  gunboats 
from  running  up  the  river.  On  the  intervention  of  the 
British  Government,  Count  Bismarck  refused  to  recog- 
nise the  duty  of  Germany  to  indenniify  the  owners  of 
the  vessels  sunk,  although  he  agreed  to  do  so. 

However,  it  may  safely  be  maintained  that  a  duty 
to  pay  compensation  for  any  damage  done  in  the 
exercise  of  the  right  of  angary  must  nowadays  be  recog- 
nised. Article  53  of  the  Hague  Regulations  stipulates 
the  payment  of  indemnities  for  the  seizure  and  utihsa- 
tion  of  all  apphances  adapted  to  the  transport  of 
persons  or  goods  which  are  the  private  property  of  in- 
habitants of  occupied  enemy  territory,  and  Article  52 
of  the  Hague  Regulations  stipulates  payment  for  requi- 
sitions ;  since  in  these  articles  the  immunity  from  con- 
fiscation of  the  private  property  of  the  inhabitants  is 
recognised,  all  the  more  must  that  of  private  neutral 


*  Thus  in  1870,  during  the  Franco-  military  purposes,  but  in  such  cases 
German  War,  the  Germans  seized  the  owners  of  the  neutral  vessels 
hundreds  of  Swiss  and  Austrian  must  be  fully  recompensed.  The 
railway  carriages  in  France  and  used  amount  of  the  indemnity  should, 
them  for  military  purposes.  if    practicable,    be   agreed    upon    in 

*  See  Article  6  of  U.  S.  Naval  War  advance  with  the  owner  or  master  of 
Code  : — 'If  military  necessity  should  the  vessel.  Due  regard  must  be  had 
require  it,  neutral  vessels  found  to  treaty  stipulations  upon  these 
within  the  bmits  of  belligerent  matters.'  See  also  Holland,  War, 
authority   may    be    seized    and    de-  No.  140. 

stroyed,     or     otherwise     used     for  *  See  Albrecht,  op.  cit.,  pp.  45-48, 


508  BELLIGERENTS   AND   NEUTRALS 

property  temporarily  on  occupied  enemy  territory  be 
recognised  also. 

Dm.ing  the  World  War,  on  March  20,  1918,  the 
United  States  of  America,  by  a  proclamation  ^  reciting 
that  the  law  and  practice  of  nations  accorded  to  a  beUi- 
gerent  Power  the  right  in  time  of  miHtary  exigency  and 
for  purposes  essential  to  the  prosecution  of  the  war  to 
take  over  and  utihse  neutral  vessels  lying  within  its 
jurisdiction,  requisitioned  seventy-seven  Dutch  vessels 
lying  in  American  harbours,^  and  undertook  to  make 
full  compensation  to  the  owners.  On  the  following 
days.  Great  Britain,  France,  and  Italy  followed  suit. 
Great  Britain  announced  the  decision  of  the  Associated 
Governments  to  requisition  the  Dutch  ships  in  their 
ports  '  in  exercise  of  the  right  of  angary,"  in  a  Note  of 
March  21,  1918,^  which  stated  that  they  had  '  felt  com- 
pelled to  fall  back  on  their  unquestionable  right  to 
employ  any  shipping  found  in  their  ports  for  the  neces- 
sities of  war,'  but  would  compensate  the  owners  of  the 
vessels  and  arrange  for  the  repatriation  of  the  crews 
if  desired.  On  March  30,  1918,^  the  Dutch  Govern- 
ment protested  against  the  interpretation  given  to  the 
right  of  angary,  '  an  ancient  rule  unearthed  for  the 
occasion  and  adapted  to  entirely  new  conditions  in 
order  to  excuse  seizure  en  masse  by  a  belHgerent  of  the 
merchant  fleet  of  a  neutral  country.'  To  this  protest, 
on  April  25,  1918,  the  British  Government  rephed  in  a 
memorandum  which  discussed  in  detail  the  modern 
right  of  angary  in  International  Law.^ 

The  Dutch  crews  belonging  to  the  ships  requisitioned 
by  the  Associated  Governments  were  not  compelled  to 
continue  to  serve,  although  many  of  them  did  so 
voluntarily. 

1  Text  in  ^./.,  xii.  (1918),  Supple-  ^  Pari.    Papers,    Misc.,     No.    11 

ment,  p.  259.  (1918),  Cd.  9025,  p.  2. 

-  See  Scott  in  A. J.,   xii.   (1918),  *  Ihid.,  p.  3. 

pp.  340-356.  *  Ibid.,  p.  6, 


RIGHT   OF    ANGARY  509 

As  regards  Great  Britain,  the  decisions  of  the  Privy 
Council  in  The  Zamora  ^  and  The  Canton  ^  recognised 
the  modern  right  of  angary  on  the  following  conditions  : 
(1)  that  urgency  (though  not  absolute  necessity) 
demanded  the  requisitioning,  (2)  that  the  neutral  owner 
was  fully  compensated.  The  coui't  somewhat  extended 
the  right  of  angary,  in  so  far  as  it  admitted  requisition- 
ing, not  only  in  connection  with  offence  or  defence,  but 
also  in  connection  with  '  other  matters  involving 
national  security/  These  cases  also  estabhshed  that 
in  British  Prize  Law  the  right  can  be  exercised  against 
captured  neutral  property  while  it  is  still  subject  to 
proceedings  for  condemnation  in  prize. 

§  366.  A  special  case  of  the  right  of  angary  found  Right  of 
recognition  by  Article  19  of  Convention  v.  of  the  Second  concern- 
Hague  Conference,  which  enacted  that  railway  material  i'^e 
cormng  from  the  territory  of  a  neutral  Power,  whether  Roiling 
belonging  to   the   neutral   State   or   to   companies   or   ^°^  ' 
private  persons,  shall  not  be  requisitioned  or  utihsed 
by  a  belhgerent,  except  in  the  case  of,  and  to  the  extent 
required  hy,  absolute  necessity,  that  it  shall  as  soon  as 
possible  be  sent  back  to  the  coimtry  of  origin,  and  that 
compensation  shall  be  paid  for  its  use.^    This  article 
also  gives  a  right  to  a  neutral  Power,  whose  railway 
material  has  been  requisitioned  by  a  belhgerent,   to 
retain  and  make  use  of,  to  a  corresponding  extent, 
railway   material   coming   from   the    territory   of   the 
belhgerent  concerned. 

§  367.  WTiatever  the  extent  of  the  right  of  angary  Right  of 
may  be,  it  does  not  derive  from  the  law  of  neutrahty.  noTderiv 
The  correlative  duty  of  a  belhgerent  to  indemnify  the  •"§  ^'"o™ 
neutral  owner  of  property  appropriated  or  destroyed  traiity. 
in  the  exercise  of  the  right  of  angary  does  indeed  derive 

1  (1916)  2  B.  and  C.  P.  C.  1.  ^  See   Nowacki,   Die  Eisenhahnen 

im  Kriege  (1906),  pp.   115-126,  and 
*  (1916)  2  B.  and  C.  P.  C.  264.  Albrecht,  op.  cit.,  pp.  22-24. 


510  BELLIGERENTS   AND   NEUTRALS 

from  the  law  of  neutrality.  But  the  right  of  angary 
itself  is  rather  a  right  deriving  from  the  law  of  war. 
As  a  rule  the  law  of  war  only  gives  the  right  to  a  beUi- 
gerent,  under  certain  circumstances  and  conditions,  to 
seize,  make  use  of,  or  destroy  the  private  property  of 
the  inhabitants  of  occupied  enemy  territory  ;  but  under 
other  circumstances  and  conditions,  and  very  excep- 
tionally, it  hkewise  gives  a  belhgerent  the  right  to  seize, 
use,  or  destroy  neutral  property  temporarily  on  occupied 
enemy  territory,  on  his  own  territory,  or  on  the  open 
sea. 

The  right  of  angary  being  a  right  deriving  from  the 
law  of  war,  it  must  not  be  confounded  with  the  right, 
which  every  State  no  doubt  possesses,  of  seizing  in  case 
of  emergency,  and  subject  to  compensation,  any  foreign 
property  on  its  territory.  One  ought  not  therefore  to 
speak  of  a  right  of  angary  belonging  to  neutrals  ^  as 
well  as  to  belligerents,  or  of  a  right  of  angary  in  peace 
as  well  as  war. 

1  As  does  Basdevant  in  E.G.,  xxiii.  (1916),  pp.  268-279.  See  also 
Garner,  i.  §  120. 


CHAPTER  III 

BLOCKADE 

I 

CONCEPTION   OF  BLOCKADE 

Grotius,  iii.  c.  1,  §  5 — Bynkershoek,  Quaestiones  Juris  publici,  i.  c.  11 — 
Vattel,  iii.  §  117— Hall,  §§233,  257-266— Lawrence,  §§  246-252— West- 
lake,  ii.  pp.  255-276,  and  Papers,  pp.  312-361 — Maine,  pp.  107-109 — 
Manning,  pp.  400-412— Philliniore,  iii.  §§  285-321— Twiss,  ii.  §§98-120— 
Halleck,  ii.  pp.  210-242— Taylor,  §§  674-684— Walker,  §§  76-82— 
Wharton,  iii.  §§  359-365— Moore,  vii.  §§  1266-1286— Wheaton,  §§  509- 
523— Hershey,  Nos.  477-495— Bluntschli,  §§  827-840— Heffter,  §§  154- 
157— GeScken  in  Holtzendorf,  iv.  pp.  738-771— Ullraann,  §  182— Bonfils, 
Nos.  1608-1673^2— Despagnet,  Nos.  620-640— Pradier-Fod^r6,  vi.  Nos. 
2776-2779,  and  viii.  Nos.  3109-3152— Nys,  iii.  pp.  165-196.  691-694— 
Rivier,  ii.  pp.  288-298— Calvo,  v.  §§  2827-2908— Fiore,  iii.  Nos.  1606- 
1629— Martens,  ii.  §  124— Pillet,  pp.  129-144— Kleen,  i.  §§  124-139— 
Ortolan,  ii.  pp.  292-836 — Hautefeuille,  ii.  pp.  189-288 — Gessner,  pp. 
145-227— Perels,  §§  48-51— Testa,  pp.  221-229— Dupuis,  Nos.  159-198, 
and  Guerre,  Nos.  113-136— Boeck,  Nos.  670-726— Holland,  Prize  Late,  §§ 
106-140— U.  S.  Naval  War  Code,  Articles  37-45— Bernsten,  §  10— Nippold, 
ii.  §  32 — Schramm,  §  9 — Bargrave  Deane,  The  Law  of  Blockade  (1870) — 
Fauchille,  Du  Blocus  maritime  (1882) — Carnazza-Amari,  Del  Blocco 
maritimo  (1897) — Fremont,  De  la  Saisie  des  Navires  en  cas  de  Blocut 
(1899)— Guj-not-Boissiere,  Du  Blocus  maritime  (1899)— §§  35-44  of  the 
'R^glement  international  des  Prises  maritimes '  (Anniuiire,  ix.  (1887), 
p.  218),  adopted  by  the  Institute  of  International  Law — Atheriey-Jones, 
Commerce  in  War  (1907),  pp.  92-252 — Soderquist,  Le  Blocus  maritime 
(1908) — Hansemann,  Die  Lehre  von  der  einheitlicken  Reise  im  Rechte  der 
Blockade  und  Kriegskonterbande  (1910) — Giildenagel,  Verfolgung  und 
Rechts/olgen  des  Blockadebruchs  (1911) — Hirschmann,  Das  intemationale 
PrismrecU(\Q\2),  §§  17-23— Wehberg,  pp.  138-172— Piggott,  The  Neutral 
Merchant  (1913) — Halsburj',  The  Laws  of  England,  xxiii.  (1912),  pp. 
279-281 — Kennedy  in  the  Journal  of  Comparative  Legislation,  New  Ser. 
ix.  (1908),  pp.  239-251— Myers  in  A.J.,W.  (1910),  pp.  571-595— General 
Report  presented  to  the  Naval  Conference  of  London  by  its  Drafting 
Committee,  Articles  1-21— HoltzofiFin  A.  J.,  x.  (1916),  pp.  53-64. 

§  368.  Blockade  is  the  blocking  by  men-of-war  ^  of  Definition 
the  approach  to  the  enemy  coast,  or  a  part  of  it,  for  Blockade. 

^  When     in     1861,     during     the       Government  blocked  the  harbour  of 
American  Civil   War,    the   Federal       Charleston   by  sinking  ships  laden 

611 


512  BLOCKADE 

the  purpose  of  preventing  ingress  and  egress  of  vessels 
of  all  nations.  Blockade  must  not  be  confounded  with 
siege,  although  it  may  take  place  concurrently  with 
siege.  "WTiereas  siege  aims  at  the  capture  of  the  besieged 
place,  blockade  endeavours  merely  to  intercept  all 
intercourse,  and  especially  conmiercial  intercourse,  by 
sea  between  the  coast  and  the  world  at  large.  Although 
blockade  is,  as  shown  above,^  a  means  of  warfare 
against  the  enemy,  it  concerns  neutrals  as  well,  because 
the  ingress  and  egress  of  neutral  vessels  are  thereby 
interdicted  and  may  be  punished.^ 

Blockade  in  the  modern  sense  of  the  term  is  an  insti- 
tution which  could  not  develop  until  neutrahty  was  in 
some  form  a  recognised  institution  of  the  Law  of  Nations, 
and  until  the  freedom  of  neutral  commerce  was  in  some 
form  guaranteed.  The  institution  of  blockade  dates 
from  1584  and  1630,  when  the  Dutch  ^  Government 
declared  all  the  ports  of  Flanders  in  the  power  of  Spain 
to  be  blockaded ;  but  it  has  taken  several  hundred 
years  for  it  to  reach  its  present  condition,  since,  until 
the  beginning  of  the  nineteenth  century,  belhgerents 
frequently  made  use  of  so-called  paper  blockades. 
These  are  no  longer  vahd,  a  blockade  now  being  bind- 
ing only  if  effective. 

It  is  on  account  of  the  practical  importance  of 
blockade  to  the  interests  of  neutrals  that  it  is 
more  conveniently  treated  with  neutrahty  than  with 


with     stone,     the     question     arose  the  blocking  of  the  harbour  is  made 
whether  a  so-called  stone  blockade  known,  so  that  neutral  vessels  can 
is  lawful.      There  ought   to   be    no  avoid  the  danger  of  being  wrecked, 
doubt — see  below,  §  380 — that  such  a  See  Wharton,  iii.  §  361a  ;  Fauchille, 
Btone  blockade  is  not  a  blockade  in  Blocus,   pp.    143-145;   Perels,    §  35, 
the  ordinary  sense  of  the  term,  and  p.  187. 
that  neutral  ships  may  not  be  seized  i  gg  173-174. 
and  confiscated  for  having  attempted  .,  "^               j      i              n    i   <  i 
egress  or  ingress.     But,  on  the  other  ,. '  ^^^  regards  the  so-called     long- 
hand, there   ought  to  be  no  doubt  ^qI    "^on;,                 '     ^^^               ' 
either  that  this  mode  of  obstructing  •590a-3906. 

an  enemy  port  is  as  lawful  as  any  *  See  Fauchille,   Blocus,   pp.  2-6, 

other  means  of  sea  warfare,  provided  and  Westlake,  Papers,  pp.  325-337. 


CONCEPTION  OF  BLOCKADE  513 

war.  But  blockade  as  a  means  of  warfare  must 
not  be  confounded  with  so-called  pacific  blockade, 
which  is  a  means  of  compulsive  settlement  of  State 
differences.^ 

Apart  from  the  stipulation  of  the  Declaration  of 
Paris  that  a  blockade  to  be  binding  must  be  effective, 
no  conventional  rules  concerning  blockade  are  in  exist- 
ence, nor  is  the  practice  of  the  States  governed  by 
common  rules  covering  all  points.  Articles  1-21  of 
the  Declaration  of  London  did  indeed  offer  a  code  of  the 
law  of  blockade ;  but  this  declaration  remained  un- 
ratified, and  although,  as  has  already  been  stated,^ 
at  the  outbreak  of  the  World  War  the  Alhes  adopted 
all  these  articles  with  certain  modifications  relating  to 
presumed  knowledge  of  the  existence  of  a  blockade, 
the  British  Maritime  Rights  Order  in  Council  of  July 
7, 1916,  and  the  corresponding  French  decree,  abandoned 
the  declaration  altogether. 

§  369.  A  blockade  is  termed  strategic  if  it  forms  part  Blockade, 
of  other  mihtary  operations  directed  against  the  coast  ai?cSi- 
which  is  blockaded,  or  if  it  be  declared  in  order  to  cut  ™erciai. 
off  suppUes  from  enemy  forces  on  shore.     In  contra- 
distinction to  strategic  blockade,  one  speaks  of  a  com- 
mercial blockade  when  it  is  declared  simply  in  order 
to  cut  off  the  coast  from  intercourse  with  the  outside 
world,  and  no  mihtary  operations  take  place  on  shore. 
That    commercial    blockades    are,    according    to    the 
present  rules  of  International  Law,   as  legitimate  as 
strategic    blockades,    is    not    generally    denied.     But 
several  writers  ^  maintained  before  the  World  War  that 
blockades  which  are  purely  commercial  ought  to  be 
abohshed  as  not  being  in  accordance  with  the  guaranteed 
freedom  of  neutral  commerce  during  war. 

1  See  above,  §§  44-49.  Papers,     pp.     313-361 ;     but     later 

*  Above,  §  292.  Westlake  (ii.  p.  263)  withdrew  his 

*  See  Hall,  §  233,  and  Westlake,       opposition  to  commercial  blockades. 

VOL.  n.  2  K 


514  BLOCKADE 

Blockade  §  370.  A  blockade  is  really  in  being  when  vessels 
versli.  "*'  of  all  nations  are  interdicted  and  prevented  from  ingress 
or  egress.  Blockade  as  a  means  of  warfare  is  admiss- 
ible only  in  the  form  of  a  universal  blockade,  that  is — 
to  borrow  the  language  of  ArHcTerF  ot  the  unratified 
Declaration  of  London — it  *  must  be  applied  impar- 
tially to  the  vessels  of  all  nations.'  If  the  blockading 
belhgerent  were  to  allow  the  ingress  or  egress  of  vessels 
of  one  nation,  no  blockade  would  exist.  ^ 

On  the  other  hand,  provided  that  a  blockade  is  uni- 
versal, a  special  hcence  for  ingress  or  egress  may  be 
given  to  a  particular  vessel  and  for  a  particular  purpose,^ 
and  men-of-war  of  all  neutral  nations  may  be  allowed 
to  pass  to  and  fro  unhindered.^  Thus,  when  during 
the  American  Civil  War  the  Federal  Government 
blockaded  the  coast  of  the  Confederate  States,  neutral 
men-of-war  were  not  prevented  from  ingress  and  egress. 
But  a  belhgerent  has  a  right  to  prevent  neutral  men-of- 
war  from  passing  through  the  hne  of  blockade,  and  it 
is  entirely  within  his  discretion  whether  or  not  he  will 
admit  or  exclude  them ;  nor  is  he  compelled  to  admit 
them  all,  even  though  he  has  admitted  one  or  more 
of  them. 
Blockade,  §  371.  As  a  rulc,  a  blockade  is  declared  for  the  purpose 
and^^^'^^  of  preventing  ingress  as  well  as  egress.  But  sometimes 
Inwards,  only  iugrcss,  or  only  egress,  is  prevented.  In  such 
cases  one  speaks  of  '  blockade  inwards  '  and  of  '  blockade 
outwards '  respectively.  Thus  the  blockade  of  the 
mouth  of  the  Danube  declared  by  the  Alhes  in  1854, 
during  the  Crimean  War,  was  a  '  blockade  inwards,' 
since  the  only  purpose  was  to  prevent  supply  reaching 
the  Russian  Army  from  the  sea.^ 

^  The  Rolla,  (1807)  6  C.  Rob.  364  ;  ratified  Declaration  of  London. 

The  Francitka,    (1855)  Spinks  287.  *  Recognised  by  Article  6  of  the 

See  also  below,  §  382.  unratified  Declaration  of  London. 

•^  This  exception  to   the   general  *  The  Qerasimo,  (1857)  11  Moore 

rule  was  not  mentioned  by  the  un-  P.O.  88. 


CONCEPTION   OF   BLOCKADE  ,515 

§  372.  In   former   times  it  was  sometimes  asserted  What 
that  only  ports,  or  even  only  fortified  ports,^  could  be  ^|n°be 
blockaded  ;    but  the  practice  of  the  States  has  always  Block- 
shown  that  single  ports  and  portions  of  an  enemy  coast, 
as  well  as  the  whole  of  the  enemy  coast,  may  be  blockaded. 
Thus,  during  the  American  Civil  War,  the  whole  of  the 
coast  of  the  Confederate  States  to  the  extent  of  about 
2500  nautical  miles  was  blockaded.     Attention  must 
also  be  drawn  to  the  fact,  that  such  ports  of  a  belh- 
gerent  as  are  in  the  hands  of  the  enemy  may  be  the 
object  of  a  blockade.     Thus  during  the  Franco-German 
War  the  French  blockaded  ^  their  own  ports  of  Rouen, 
Dieppe,    and   Fecamp,    which   were   occupied   by   the 
Germans.      Article  1  of  the  unratified   Declaration  of 
London  indirectly  sanctioned  this  practice  by  enacting 
that  '  a  blockade  must  not  extend  ^  beyond  the  ports 
and  coasts  belonging  to  or  occupied  by  the  enemy.' 

§  373.  It  is  a  moot  question  whether  the  mouth  of  Blockade 
a  so-called  international  river  *  may  be  the  object  of  a  nltionai 
blockade,  in  case  the  riparian  States  are  not  all  belh-  i^i^ers. 
gerents.     Thus,  when  in  1854,  during  the  Crimean  War, 
the  allied  fleets  of  Great  Britain  and  France  blockaded 
the  mouth  of  the  Danube,  Bavaria  and  Wiirtemberg, 
which  remained  neutral,  protested.     When,  in  1870,  the 
French  blockaded  the  whole  of  the  German  coast  of 
the  North  Sea,  they  exempted  the  Dollart,  the  mouth 
of  the  river  Ems,  because  the  Dollart  separates  the 
Dutch  province  of  Groningen  from  German  territory. 
Again,  when  in  1863,  during  the  blockade  of  the  coast 
of  the  Confederate  States,  the  Federal  cruiser  Vanderhilt 
captured    the    British   vessel    PeterJioff^   destined    for 

*  Napoleon  i.   maintained   in   his  blockade '  (see  below,  §§  390a-3906)  is 

Berlin  Decrees  :    '  Le  droit  de  blocus,  of  course  essentially  a  blockade  ex- 

d'apr^s  la  raison  et  I'usage  de  tous  tending  beyond  the  coast  of  the  enemy, 

lea  peuples  polices,  n'est  applicable  *  See  above,  vol.  i.  §  176. 

qu'aux  places  fortes.'  ^  (186t))  5  Wall.  49.    See  Fauchille, 

^  See  Fauchille,  Blocus,  p.  161.  Bloctis,  pp.  171-183;  Phillimore,  iii.  § 

'  The      so-called      'long-distance  293a  ;  Hall,  §266  ;  Rivier,  ii.  p.  291. 


r 


16  BLOCKADE 


Matamoros,  on  the  Mexican  shore  of  the  Rio  Grande, 
the  American  courts  released  the  vessel  on  the  ground 
that  trade  ^\ath  Mexico,  which  was  neutral,  could  not 
be  prohibited. 

The  Declaration  of  London,  had  it  been  ratified,  would 
only  have  settled  the  controversy  as  regards  one  point. 
By  enacting  that  '  the  blockading  forces  must  not  bar 
access  to  neutral  ports  or  coasts,'  Article  18  would 
certainly  have  prohibited  the  blockade  of  the  whole 
mouth  of  a  boundary  river  between  a  neutral  and  a 
beUigerent  State,  as,  for  instance,  the  River  Rio  Grande 
in  case  the  United  States  of  America  was  at  war  and 
Mexico  remained  neutral.  But  no  provision  was  made 
for  the  case  of  the  blockade  of  the  mouths  of  rivers,  such 
as  the  Danube  or  the  Rhine,  for  example,  which  pass 
through  several  States  between  their  sources  and  their 
mouths  at  the  sea-coast,  if  one  or  more  of  the  upper 
riparian  States  remain  neutral. 
Blockade  §  373a.  Similar  to,  but  not  identical  with,  the  question 
of  Straits,  ^j^g^j^gr  the  mouth  of  an  international  river  may  be 
blockaded,  is  the  question  whether  territorial  straits 
may  be  blockaded.     Three  cases  must  be  distinguished  : 

(1)  Straits  which  only  separate  territory  belonging  to 
one  and  the  same  State,  and  do  not  connect  two  parts  of 
the  open  sea  {e.g.  the  Solent),  may  certainly  be  blockaded. 

(2)  When  straits  only  separate  territory  belonging  to 
one  and  the  same  State,  but  at  the  same  time  connect 
two  parts  of  the  open  sea,  the  question  whether  they 
can  be  blockaded  is  unsettled,^  During  the  Turco- 
Itahan  War  in  1911  Italy  did  not  declare  a  blockade 
of  the  Dardanelles,  which  belonged  to  this  class  of 
straits.  The  Bosphorus  and  Dardanelles  are  now  to  be 
subject  to  a  special  international  regime  under  which 
they  may  never  be  blockaded ;  ^  but  the  general  legal 

1  Baty  in  Jahrbuch  dea  Volkerrechts,  i.  (1913),  pp.  630-639. 
*  See  above,  vol.  i.  §  197. 


CONCEPTION  OF  BLOCKADE  517 

position  of  straits  of  this  kind  as  regards  blockade  still 
remains  open. 

(3)  Unsettled  also  is  the  case  in  which  straits  divide 
two  different  States. 

§  374.  The  question  has  been  raised  in  what  way  justifica- 
blockade,  which  vests  in  a  belhgerent  a  certain  juris-  BuTckLie. 
diction  over  neutral  vessels,  and  has  detrimental  con- 
sequences for  neutral  trade,  can  be  justified.^    Several 
writers,    following    Hautefeuille,^    maintain    that    the 
estabhshment  of  a  blockade  by  a  belligerent  stationing 
a  number  of  men-of-war  so  as  to  block  the  approach  to 
the  coast  amounts  to  conquest  of  that  part  of  the  sea, 
and  that  such  conquest  justifies  a  belligerent  in  pro- 
hibiting ingress  and  egress  of  vessels  of  all  nations. 
In  contradistinction  to  this  artificial  construction  of 
a  conquest  of  a  part  of  the  sea,  some  writers  ^  try  to 
justify  blockade  by  the  necessity  of  war.     I  think,  how- 
ever, that  no  special  justification  of  blockade  is  neces- 
sary at  all.     The  fact  is  that  the  detrimental  conse- 
quences of  blockade  to   neutrals  stand  in   the  same 
category  as  the  many  other  detrimental  consequences 
of  war  to  neutrals.     Neither  the  one  nor  the  other  need 
be   specially   justified.     A   blockade   interferes   indeed 
with  the  recognised  principle  of  the  freedom  of  the  sea, 
and,  further,  with  the  recognised  freedom  of  neutral 
commerce.     But   all   three   have   developed   together, 
and  when  the  freedom  of  the  sea  in  time  of  peace  and 
war,  and,  further,  when  the  freedom  of  neutral  com- 
merce  became   generally   recognised,   the   exceptional 
restrictions    of    blockade    became    at    the    same    time 
recognised  as  legitimate. 

^  The  matter  is  thoroughly  treated  '  See  Hautefeuille,  ii.  pp.  190-191. 

by  Fauchille,  Blocus,  pp.  13.36,  and  *  See  Gessner,  p.  151 ;  Bluntschli, 

Giildenagel,  o/).  ciL,  pp.  51-8(3.  §  827;  Martens,  ii.  §  124. 


518  BLOCKADE 

II 

ESTABLISHMENT  OF  BLOCKADE 

See  the  literature  quoted  above  at  the  commenoement  of  §  368. 

Compe-         §  375.  A   declaration   of   blockade   being   *  a   hieh  ^ 

tence  to  .  do 

establish  act  of  Sovereignty/  and  having  far-reacliing  conse- 
Biockade.  q^ences  upon  neutral  trade,  it  is  generally  recognised 
not  to  be  in  the  discretion  of  a  commander  of  a  naval 
force  to  establish  a  blockade  without  the  authority 
of  his  Government.  Article  9  of  the  unratified  Declara- 
tion of  London  recognised  this  by  providing  that  '  a 
declaration  of  blockade  is  made  by  the  blockading 
Power  or  by  the  naval  authorities  acting  in  its  name.' 
The  authority  of  the  Government  to  estabhsh  a  blockade 
may  be  granted  to  a  commander  of  a  naval  force  for 
the  express  purpose  of  a  particular  blockade,  the 
Government  ordering  him  to  blockade  a  certain  port 
or  coast ;  or  the  Government  may  expressly  delegate 
its  power  of  declaring  a  blockade  to  a  commander, 
for  use  at  his  discretion.  Moreover,  if  operations  of 
war  take  place  at  a  great  distance^  from  the  seat  of 
Government,  and  a  commander  finds  it  necessary  to 
estabhsh  a  blockade,  the  blockade  can  become  vahd 
through  the  Government  giving  its  immediate  consent 
after  being  informed  of  the  act  of  the  commander. 
Further,  the  powers  vested  in  the  hands  of  the  supreme 
commander  of  a  fleet  are  supposed  to  include  the 
authority  to  estabhsh  a  blockade  in  case  he  finds  it 
necessary,  provided  that  his  Government  acquiesces 
as  soon  as  it  is  informed  of  its  estabhshment.^ 
§  376.  A  blockade  does  not  come  into  being  ipso  facto 

^  The  HenricJc  and  Maria,  (1799)  "  An  regards  the  whole  matter,  see 

1  C.  Rob.  146.  Fauchille,  Blocus,  pp.  68-73. 

■'  The  Holla,  (1807)  6  C.  Rob.  364. 


ESTABLISHMENT  OF  BLOCKADE  519 

by  the  outbreak  of  war.    Even  the  actual  blocking  of  Deciara- 
the  approach  to  an  enemy  coast  by  belhgerent  men-of-  Notifica- 
war  need  not  by  itself  mean  that  the  ingress  and  egress  Jj°"  ^ 
of  neutral  vessels  are  to  be  prohibited,  since  it  may  be 
for  the  purpose  of  preventing  the  egress  and  ingress  of 
enemy    vessels    only.     Continental    writers,    therefore, 
have   always   considered   notification   to   be   essential 
for  the  estabHshment  of  a  blockade.    Enghsh,  American, 
and  Japanese  writers,  however,  have  not  held  notifi- 
cation to  be  essential,  although  they  have  considered 
knowledge  on  the  part  of  a  neutral  vessel  of  an  exist- 
ing blockade  to  be  necessary  to  justify  her  condemna- 
tion for  breach  of  blockade.^ 

But  although  Continental  writers  have  always  held 
notification  to  be  essential  for  the  estabhshment  of 
blockade,  they  have  differed  with  regard  to  the  kind 
of  notification  that  is  necessary.  Some  writers  ^  have 
maintained  that  three  different  notifications  must 
take  place — namely,  (1)  a  local  notification  to  the 
authorities  of  the  blockaded  ports  or  coast ;  (2)  a 
diplomatic  or  general  notification  to  all  maritime 
neutral  States  by  the  blockading  belhgerent ;  and  (3) 
a  special  notification  to  every  approaching  neutral 
vessel.  Other  writers  ^  have  considered  only  diplo- 
matic and  special  notification  essential.  Others  again  "* 
have  maintained  that  special  notification  to  every 
approaching  vessel  is  alone  required,  although  they 
have  recommended  diplomatic  notification  as  a  matter 
of  courtesy. 

As  regards  the  practice  of  States,  it  has  always  been 
usual  for  the  commander  who  estabhshes  a  blockade  to 
send  a  notification  of  the  blockade  to  the  authorities 
of  the  blockaded  ports  or  coast  and  to  the  foreign 

*  See  below,  §  384.  Gessner,  p.  181. 

*  See,  for  instance,  Kleen,  i.  §  131.  *  See,   for  instance,  Hautefeuille, 
®  See,    for    instance,    Bluntschli,        ii.    pp.    224   and   226;    Calvo,   v.    § 

§§    831-832;     Martens,    ii.    §    124,        2846;  Fauchille,  S/ocu^  pp.  219-221. 


520  BLOCKADE 

consuls  there.  It  has,  further,  always  been  usual  for 
the  blockading  Government  to  notify  the  fact  diplo- 
matically to  all  neutral  maritime  States.  And  some 
States,  such  as  France  and  Italy,  have  always  ordered 
their  blockading  men-of-war  to  board  every  approach- 
ing neutral  vessel,  and  notify  her  of  the  estabhshment 
of  the  blockade.  But  Great  Britain,  the  United  States 
of  America,  and  Japan  have  not  considered  notifica- 
tion to  be  essential  for  the  institution  of  a  blockade. 
They  have  held  that  the  simple  fact  that  the  approach 
was  blocked,  and  egress  and  ingress  of  neutral  vessels 
actually  prevented,  is  sufl&cient  to  make  the  existence 
of  a  blockade  known,  but  when  no  diplomatic  notifi- 
cation had  taken  place,  they  did  not  seize  a  vessel 
for  breach  of  blockade  if  her  master  had  no  actual 
notice  of  the  existence  of  the  blockade.  Enghsh,^ 
American,^  and  Japanese  ^  practice,  accordingly,  have 
made  a  distinction  between  a  so-called  de  facto  blockade 
and  a  notified  blockade. 

If  the  Declaration  of  London  had  been  ratified. 
Articles  8  to  12  would  have  created  a  common  practice, 
for  the  Powers  came  to  an  agreement  upon  the  follow- 
ing rules : — 

(1)  There  was  to  be  a  declaration  as  well  as  a  notifica- 
tion in  order  to  make  a  blockade  binding  (Article  8). 

(2)  A  declaration  of  blockade  was  to  be  made  either  by 
the  blockading  Power,  or  by  the  naval  authorities  acting 
in  its  name,  and  was  to  specify  (a)  the  date  when  the  blockade 
began  ;  {b)  the  geographical  Hmits  of  the  coastHne  under 
blockade  ;  and  (c)  the  period  within  which  neutral  vessels 
might  come  out  (Article  9).  If  the  commencement  of 
the  blockade  or  its  geographical  hmits  were  given  inaccu- 
rately the  declaration  was  not  to  be  vaUd,  and  a  new  declara- 

1  The   Vrouw  Judith,  (1799)  1  C.        Articles  39-40. 
Rob.  150.  '  See  Japanese  Prize  Lav,  Article 

"  See    U.S.     Naval    War    Code,       30. 


ESTABLISHMENT  OF  BLOCKADE        521 

tion  was  to  be  necessary  in  order  to  make  the  blockade 
binding  (Article  10).  If  no  mention  was  made  of  the  period 
within  which  neutral  vessels  might  come  out,  they  were  to 
be  allowed  to  pass  out  freely  (Article  16). 

(3)  Notification  of  the  declaration  of  blockade  was  at 
once  to  be  made.  Two  notifications  were  to  be  necessary 
(Article  11)  :  (1)  by  the  Government  of  the  blockading 
fleet  to  all  neutral  Governments,  the  purpose  of  this  notifi- 
cation being  to  enable  neutral  Governments  to  inform 
merchantmen  saihng  under  their  flag  of  the  establishment 
of  a  blockade  ;  (2)  by  the  ofiicer  commanding  the  blockad- 
ing force  to  the  local  authorities,  whose  duty  it  was  to  notify 
the  foreign  consuls  at  the  blockaded  port  or  coastline.  The 
purpose  of  this  notification  was  to  enable  neutral  merchant- 
men in  the  blockaded  port  or  ports  to  receive  knowledge 
of  the  establishment  of  the  blockade,  and  to  prepare  to 
leave  the  port  within  the  period  specified  in  the  declara- 
tion of  blockade.  If  this  notification  had  not  been  made, 
neutral  vessels  were  to  be  allowed  to  pass  freely  out  of  the 
blockaded  port  (Article  16). 

(4)  The  rules  as  to  declaration  and  notification  of  block- 
ade were  to  apply  to  cases  where  the  limits  of  a  blockade 
were  extended,  or  where  a  blockade  was  re-estabhshed 
after  having  been  raised  (Article  12). 

But,  as  has  been  already  explained,  the  Declaration 
of  London  remains  unratified,  and  though  the  Alhed 
Governments  adopted  the  greater  part  of  it  at  the 
outbreak  of  the  World  War,  later  they  fell  back  upon 
*  the  historic  and  admitted  rules  of  the  Law  of  Nations.'  ^ 

§  377.  As  regards  ingress,  a  blockade  becomes  vahd  Length  of 
the  moment  it  is  estabUshed  ;  even  vessels  in  ballast  E^esf^f 
have  no  right  of  ingress.     As  regards  egress,  it  has^^"*'!*' 

__  irti^i*  CBSC18. 

always  been  usual  for  the  blockading  commander  to 
grant  a  certain  length  of  time  within  which  neutral 
vessels  might  leave  the  blockaded  ports  unhindered ;  ^ 

^  See  above,  §§  292,  368.  Article  9  of  the  unratified  Declara- 

*  Recognised    by    implication    in       tion  of  London. 


522  BLOCKADE 

but  no  rule  exists  respecting  the  length  of  such  time. 
Fifteen  days  have  frequently  been  granted,^  but  in  the 
blockades  during  the  World  War,  the  periods  granted 
were  very  short,  namely,  four  days  in  the  case  of  the 
blockade  of  German  East  Africa,  two  days  in  the  cases 
of  the  blockade  of  the  Cameroons  and  of  the  Bulgarian 
coast  on  the  Mgesrn  Sea,  and  three  days  in  the  case  of 
the  blockade  of  the  coast  of  Asia  Minor. 
ir'^kLi  ^  ^'^^*  ^P^^*  iiom.  the  conclusion  of  peace,  a  blockade 
'  can  come  to  an  end  in  four  different  ways. 

It  may,  in  the  first  place,  be  raised,  or  restricted  in 
its  Hmits,  by  the  blockading  Power  for  any  reason  it 
hkes.  In  such  a  case  it  has  always  been  usual  to  notify 
the  end  of  blockade  to  all  neutral  maritime  States.^ 

A  blockade  can,  secondly,  come  to  an  end  through 
an  enemy  force  driving  off  the  blockading  squadron 
or  fleet.  In  such  a  case,  the  blockade  ends  ipso  facto 
by  the  blockading  squadron  being  driven  away,  what- 
'  ever  their  intention  as  to  returning  may  be.  Should 
the  squadron  return  and  resume  the  blockade,  it  must 
be  considered  as  a  new  blockade,  and  not  simply  the 
continuation  of  the  former  blockade,  and  the  steps 
necessary  for  the  estabhshment  of  a  blockade  must 
again  be  taken. ^ 

The  third  ground  for  the  ending  of  a  blockade  is  its 
failure  to  be  effective.* 

The  fourth  ground  is  the  capture  and  occupation  of 
the  blockaded  port  or  coast  by  the  blockading  force. 
It  was  indeed  held  in  the  American  Civil  War  in  the 
case  of  The  Circassian,^  that  this  did  not  end  the  blockade ; 

^  According  to  U.S.  Naval  War  tion  of  a  blockade,  be  notified  to  all 
Code,  Article  43,  thirty  day.s  were  neutral  Governments  by  the  blockad- 
to  be  allowed  '  unless  otherwise  ing  Power,  and  to  the  local  author- 
specially  ordered.'  ities  by  the  officer  commanding  the 

"  Article  13  of  the  unratified  De-  blockading  fleet, 

claration  of  London  stipulated  that  *  See  Article  12  of  the  unratified 

the  voluntary  raising  of  a  blockade.  Declaration  of  London, 

as  also  any  restrictions  in  its  limits,  *  See  below,  §  382. 

must,  in  the  same  way  as  the  declara-  ^  (1864)  2  Wall.  135. 


EFFECTIVENESS  OF  BLOCKADE         523 

but  the  Mixed  Commission  on  British  and  American 
Claims,  set  up  after  the  war,  considered  that  judgment 
to  be  wrong,  and  awarded  compensation  to  all  the 
claimants.^ 


Ill 

EFFECTIVENESS   OF  BLOCKADE 

See  the  literature  quoted  above  at  the  commencement  of  §  368. 

§  379.  The  necessity  that  a  blockade  should  be  Effective 
made  effective  by  the  presence  of  a  blockading  squadron  dlg^Jno^* 
of  sufficient  strength  to  prevent  egress  and  ingress  of^?"*? 
vessels  became  gradually  recognised  during  the  first  Blockade. 
half  of  the  nineteenth  century ;  it  became  formally 
enacted  as  a  principle  of  the  Law  of  Nations  through 
the  Declaration  of  Paris  in  1856,  and  was  recognised 
in  Article  2  of  the  unratified  Declaration  of  London. 
Effective  blockade  is  the  contrast  to  so-called  fictitious 
or  paper  blockade,  which  was  frequently  practised 
during  the  seventeenth,  eighteenth,  and  at  the  begin- 
ning of  the  nineteenth  century.^  Fictitious  blockade 
consists  in  declaring  and  notifying  that  a  port  or  a 
coast  is  blockaded  without,  however,  posting  a  suffi- 
cient number  of  men-of-war  on  the  spot  to  be  really 
able  to  prevent  egress  and  ingress  of  every  vessel.  It 
was  one  of  the  principles  of  the  First  and  of  the  Second 
Armed  Neutrahties  that  a  blockade  should  always  be 
effective  ;  but  it  was  not  till  after  the  Napoleonic  wars 
that  this  principle  gradually  found  universal  recogni- 
tion. During  the  second  half  of  the  nineteenth  century, 
even  those  States  which  had  not  acceded  to  the  Declara- 

*  However,    in    1899    during    the  of  The  Circassian  to  be  decisive. 
Spanish  American  AVar,  the  Supreme 

Court  of  the  United  States  in   The  ^  See   Fauchille,    Blocut,    pp.   74- 

Advla  (176  U.S.  361)  held  the  case  109. 


524  BLOCKADE 

tion  of  Paris  did  not  dispute  the  necessity  of  a  blockade 
being  effective. 
Condition      §  380.  The  condition  of  effectiveness  of  a  blockade, 
tivenessof  as  defined  by  the  Declaration  of  Paris,  is  its  main- 
Biockade.  tenance  hy  such  a  force  as  is  sufficient  really  to  prevent 
access  to  the  coast.     But  no  unanimity  exists  respecting 
what  is  required  to  constitute  an  effective  blockade 
according  to   this  definition.     Apart  from  differences 
of  opinion  regarding  points  of  minor  interest,  it  may 
be  stated  that  in  the  main  there  have  been  two  con- 
flicting opinions. 

According  to  one  opinion,  the  definition  of  an  effec- 
tive blockade  pronounced  by  the  First  Armed  Neu- 
trahty  of  1780  is  vahd,  and  a  blockade  is  effective  only 
when  the  approach  to  the  coast  is  barred  by  a  chain 
of  men-of-war,  anchored  on  the  spot,  and  so  near  to 
one  another  that  the  Hne  cannot  be  passed  without 
obvious  danger  to  the  passing  vessel.^  This  corre- 
sponds to  the  practice  followed  before  the  World 
War  by  France. 

According  to  another  opinion,  a  blockade  is  effective 
when  the  approach  is  watched — to  use  the  words  of 
Dr.  Lushington  ^ — '  by  a  force  sufficient  to  render  the 
egress  and  ingress  dangerous,  or,  in  other  words,  save 
under  pecuHar  circumstances,  as  fogs,  violent  winds, 
and  some  necessary  absences,  sufficient  to  render  the 
capture  of  vessels  attempting  to  go  in  or  come  out  most 
probable."  According  to  this  opinion,  there  need  be 
no  chain  of  anchored  men-of-war  to  expose  any  vessels 
attempting  to  break  the  blockade  to  a  cross  fire ;    a 

^  See    Hautefenille,    ii.     p.     194  ;  by  stationing  a  number  of  ships,  and 

Gessner,   p.    169;    Kleen,   i.    §  129;  forming  as  it  were  an  arch  of  circum- 

Boeck,  Nos.  070-681  ;   Dupuis,  Nos.  vallation   round   the  mouth   of   the 

173-174;  Fauchille,  Blocus,  pp.  110-  prohibited  port,  where,  if  the  arch 

142.    Phillimore,  iii.  §  293,  takes  up  fails  in  any  one  part,  the  blockade 

the  same  standpoint  in  so  far  as  a  itself  fails  altogether.' 

blockade  de  facto  is  concerned  :    '  A  *  In  his  judgment  in   The   Fran- 

blockade  de  facto  should  be  efifected  ciska,  (1855)  Spinks  287. 


EFFECTIVENESS  OF  BLOCKADE         525 

real  danger  of  capture  suffices,  whether  the  danger  is 
caused  by  cruising  or  anchored  men-of-war.  This  is 
the  standpoint  of  the  theory  and  practice  of  Great 
Britain  and  the  United  States,  and  it  seems  hkewise  to 
be  that  of  Germany  and  several  German  writers.^  The 
blockade  during  the  American  Civil  War  of  the  whole  f  rx-Y  o 
coast  of  the  Confederate  States  to  the  extent  of  2500  ^  — ^ 
nautical  miles  by  four  hundred  Federal  cruisers  could, 
of  course,  only  be  maintained  by  cruising  vessek  ;  and 
the  fact  that  all  neutral  maritime  States  recognised  it 
as  effective  shows  that  the  opinion  of  dissenting  writers 
had  more  theoretical  than  practical  importance. 

The  Declaration  of  London,  if  it  had  been  ratified, 
would  have  settled  the  controversy  at  least  to  the  extent 
of  determining  that  '  the  question  whether  a  blockade 
is  effective,  is  a  question  of  fact,' "  and  thereby  by  im- 
phcation  recognising  the  before-mentioned  decision  of 
Dr.  Lushington.  But,  as  has  been  explained,^  the 
declaration  remains  unratified,  and  it  was  abandoned 
by  Great  Britain  and  France  during  the  World  War. 

If  the  Anglo-American  standpoint  be  adopted, 
since  the  question  of  efiectiveness  is  one  of  fact,  and 
real  danger  to  passing  vessels  is  the  characteristic 
of  effectiveness,  it  must  be  recognised  that  the  dis- 
tance of  the  blockading  men-of-war  from  the  blockaded 
port  or  coast  is  immaterial  so  long  as  the  circumstances 
and  conditions  of  the  special  case  justify  it.  Thus 
during  the  Crimean  War  the  port  of  Riga  was  blockaded 
by  a  man-of-war  stationed  at  a  distance  of  120  miles 
from  the  town,  in  the  Lyser  Ort,  a  channel  three  miles 
wide  forming  the  only  approach  to  the  gulf.^  More- 
over, in  certain  cases,  and  in  the  absence  of  a  sufficient 
number  of  men-of-war,  a  blockade  may  be  made  efiec- 

^  See  Perels,  §  49  ;    Bluntschli,  §  ^  Above,  §§  292,  368. 

829  ;  Liszt,  §  41,  iii.  '   The    Franciska,    (1855)    Spinka 

287.     See  Hall,  §  260,  and  Holland, 
*  Article  3.  Studies,  pp.  166-167. 


526  BLOCKADE 

tive  through  planting  land  batteries  within  range  of 
any  vessel  attempting  to  pass,^  provided  that  there  be 
at  least  one  man-of-war  on  the  spot.  But  a  stone 
blockade,^  so  called  because  vessels  laden  with  stones 
are  sunk  in  the  channel  to  block  the  approach,  is  not 
an  effective  blockade. 
Amount  §  381.  It  is  impossible  to  state  exactly  what  degree 
which"^^'^  of  danger  to  a  vessel  attempting  to  pass  is  necessary 
creates  ^q  provc  an  effective  blockade.  It  is  recognised  that  a 
nes8.  blockade  does  not  cease  to  be  effective  because  now  and 
then  a  vessel  succeeds  in  passing  the  hne  unhindered, 
provided  that  there  was  so  much  danger  as  to  make 
her  capture  probable.  Dr.  Lushington  strikingly  dealt 
with  the  matter  in  the  following  words  :  ^  '  The  main- 
tenance of  a  blockade  must  always  be  a  question  of 
degree — of  the  degree  of  danger  attending  ships  going 
into  or  leaving  a  port.  Nothing  is  further  from  my 
intention,  nor  indeed  more  opposed  to  my  notions, 
than  any  relaxation  of  the  rule  that  a  blockade  must 
be  sufficiently  maintained ;  but  it  is  perfectly  obvious 
that  no  force  could  bar  the  entrance  to  absolute  cer- 
tainty ;  that  vessels  may  get  in  and  get  out  during 
the  night,  or  fogs,  or  violent  winds,  or  occasional 
absence  ;  that  it  is  most  difficult  to  judge  from  numbers 
alone.  Hence,  I  beUeve  that  in  every  case  the  inquiry 
has  been,  whether  the  force  was  competent  and  present, 
and,  if  so,  the  performance  of  the  duty  was  presumed  ; 
and  I  think  I  may  safely  assert  that  in  no  case  was  a 
blockade  held  to  be  void  when  the  blockading  force 
was  on  the  spot  or  near  thereto  on  the  ground  of  vessels 
entering  into  or  escaping  from  the  port,  where  such 

1  The  Nancy,  (1809)  1  Acton  63;  -  See  above,  368.      As  to  laying 

The  Circassian,  (1864)  2  Wall.  135;  mines   off  enemy    ports  and  coasts 

The    Olinde    Bodrigties,    (1898)    174  to  interrupt  commercial  navigation, 

U.S.    510.      See   also   Bluntschli,    §  see  above,  §  182a. 
829  ;  Perels,  §  49 ;  Geffcken  in  Holt- 

zend(yrff,iv.p.  ^ 50;  WsAker,  Manual,  ^  Inhis  judgmentin  TAei^rancwia, 

§  78.  (1855)  Spinks  287. 


EFFECTIVENESS    OF   BLOCKADE  527 

ingress  or  egress  did  not  take  place  with  the  consent 
of  the  blockading  squadron/ 

§  382.  A  blockade  is  effective  so  long  as  the  danger  Cessation 
lasts  which  makes  probable  the  capture  of  such  vessels  uveneas. 
as  attempt  to  pass  the  approach.  It  ceases  ipso  facto 
by  the  absence  of  such  danger,  whether  the  blockading 
men-of-war  are  driven  away,  or  are  sent  away  for  the 
fulfilment  of  some  task  which  has  nothing  to  do  with 
the  blockade,  or  voluntarily  \vithdraw,  or  allow  the 
passage  of  vessels  in  other  cases  than  those  which  are 
exceptionally  admissible.  Thus,  when  in  1861,  during 
the  American  Civil  War,  the  Federal  cruiser  Niagara, 
which  blockaded  Charleston,  was  sent  away,  and  her 
place  was  taken  after  five  days  by  the  Minnesota, 
the  blockade  ceased  to  be  effective,  although  the 
Federal  Government  refused  to  recognise  this.^  Thus, 
further,  when,  during  the  Crimean  War,  Great  Britain 
allowed  Russian  vessels  to  export  goods  from  blockaded 
ports,  and  accordingly  permitted  the  egress  of  such 
vessels  from  the  blockaded  port  of  Riga,  the  blockade 
ceased  to  be  effective,  because  it  tried  to  interfere  with 
neutral  commerce  only  ;  and  the  capture  of  the  Danish 
vessel  FrancisJca  ^  for  attempting  to  break  the  blockade 
was  not  upheld. 

On  the  other  hand,  practice,^  and  the  majority  of 
writers,  have  always  recognised  that  a  blockade  does 
not  cease  to  be  effective  in  case  the  blockading  force 
is  driven  away  for  a  short  time  through  stress  of  weather, 
and  Article  4  of  the  unratified  Declaration  of  London 
adopted  this  ^aew  by  providing  that  *  a  blockade  is  not 
regarded  as  raised  if  the  blockading  force  is  temporarily 
withdrawn  on  account  of  stress  of  weather.'    Enghsh'* 

^  See    Mountague  Bernard,   Xeu-  ^   The  Columbia,  (1799)  1  C.  Rob. 

trality  of  Great   Britain  during  the  154. 
American  Civil  War  (1870),  pp.  237- 

239.  "  See  Twiss,  ii.  §  103,  p.  201,  and 

*  Spinks  287.     See  above,  §  370.  Philliraore,  iii.  §  294. 


528  BLOCKADE 

Y;Titers  have  also  denied  that  a  blockade  ceases  to  be 
effective  because  a  blockading  man-of-war  is  absent 
for  a  short  time  for  the  purpose  of  chasing  a  vessel 
which  succeeded  in  passing  the  approach  unhindered/ 
but  the  unratified  Declaration  of  London  did  not 
recognise  this.^ 

IV 

BREACH  OF  BLOCKADE 

See  the  literature  quoted  above  at  the  commencement  of  §  368. 

Definition     §  383.  Breach  or  violation  of  blockade  is  the  un- 
of    ^^^"^    allowed  ingress  or  egress  of  a  vessel  in  spite  of  the 
Blockade,  blockadc.    An  attempted  breach  is,  so  far  as  a  punish- 
ment is  concerned,^  treated  in  the  same  way  as  a  con- 
summated  breach ;     but   the   practice   of   States   has 
differed  as  to  the  time  at  which,  and  act  by  which, 
an  attempt  to  break  a  blockade  commences. 
No  §  384.  Since  breach  of  blockade  is,  from  the  stand- 

without    point   of   the   blockading  belhgerent,   a   criminal  act, 
Bi°^k^d^  knowledge  on  the  part  of  a  vessel  of  the  existence  of  a 
blockade  is  essential  for  making  her  egress  or  ingress 
a  breach  of  blockade. 

It  is  for  this  reason  that  Continental  theory  and 
practice  have  never  considered  a  blockade  estabhshed 
without  local  and  diplomatic  notification,  so  that  every 
vessel  might  have,  or  might  be  supposed  to  have, 
notice  of  its  existence.  For  the  same  reason  some 
States,  as  France  and  Italy,  have  never  considered  a 
vessel  to  have  committed  a  breach  of  blockade  unless, 
before  her  attempted  ingress,  one  of  the  blockading 

^  See  Article  37  of  U.S.  Naval  War  (above,  §  296)  that  a  blockade-runner 

Code.  does  not  violate  International  Law, 

^  See  the  Report  of  the  Drafting  but  rules  made  by  the  belligerent. 

Committee  on  Article  4.  violations    of    which    International 

*  It  has  already  been  pointed  out  Law  permits  him  to  punish. 


BREACH   OF   BLOCKADE  529 

cruisers   stopped   her,   gave  her  special  warning,  and 
recorded  the  warning  in  her  log-book.^ 

British,  American,  and  Japanese  practice  regarding 
the  necessary  knowledge  of  the  existence  of  a  blockade 
on  the  part  of  a  vessel  has  always  made  a  distinction 
between  actual  and  constructive  notice,  no  breach  of 
blockade  ha\ing  been  held  to  exist  without  either  the 
one  or  the  other.^  Actual  notice  has  been  understood 
to  mean  knowledge  acquired  by  a  direct  warning  from 
one  of  the  blockading  men  -  of  -  war,  or  knowledge 
acquired  from  any  other  pubhc  or  private  source  of 
information.  Constructive  knowledge  has  been  under- 
stood to  arise  when  a  vessel  has  been  presumed  to  know 
of  the  blockade  on  the  ground  either  of  notoriety  or 
of  diplomatic  notification.  The  existence  of  a  blockade 
has  always  been  presumed  to  be  notorious  to  vessels 
within  the  blockaded  ports  ;  but  it  has  been  a  question 
of  fact  whether  it  was  notorious  to  other  vessels.  Know- 
ledge of  the  existence  of  a  blockade  has  always  been 
presumed  if  sufficient  time  had  elapsed  after  the  home 
State  of  the  vessel  had  received  diplomatic  notifica- 
tion of  the  blockade,  for  it  to  inform  all  vessels  saihng 
under  its  flag,  whether  or  no  they  had  actually  received, 
or  taken  notice  of,  the  information.^ 

The  unratified  Declaration  of  London  followed,  to  a 
certain  extent,  British,  American,  and  Japanese  practice  ;  it 
differed  chiefly  in  that  the  presumption  of  knowledge  of  a 
blockade  was  never  to  be  absolute,  but  might  in  every  case 
be  rebutted.  Article  14  provided  that  '  the  habihty  of  a 
neutral  vessel  to  capture  for  breach  of  blockade  is  contingent 
on  her  knowledge,  actual  or  presumptive,  of  the  blockade.' 
Knowledge  of  the  blockade  was  to  be  presumed,  jailing 

1  See  above,  §  37R.  ^  The  Vrouw  Judith,  (1799)  1  C. 

Rob.   150;    The  Xepttinus,  (1799)  2 

*  See  Holland,  Prize  Law),  §§  107,  C.  Rob.  110;  The  Calypso,  (1799) 
114-127;  U.S.  Naval  War  Code,  2C.  Rob.  298;  The  Xeptunua,  (1800) 
Article  39;  Japanese  Prize  Law,  3  C.Rob.  173;  The  ffoffnung,  (1805) 
Article  26.  6  C.  Rob.  112. 

VOL.  II.  2  L 


530  BLOCKADE 

proof  to  the  contrary,  in  case  the  vessel  had  left  a  neutral 
port  subsequent  to  the  notification  of  the  blockade 
to  the  Power  to  which  such  port  belonged,  and  provided 
that  the  notification  was  made  in  sufficient  time  (Article 
15).  But  m  case  a  neutral  vessel  approa-ching  a  blockaded 
port  had  neither  actual  nor  presumptive  knowledge  of 
the  blockade,  she  was  not  to  be  considered  in  delicto,  and 
notification  had  to  be  made  to  her  by  recording  a  warn- 
ing in  her  log-book.  Further,  if  a  neutral  vessel  was 
coming  out  of  a  blockaded  port,  she  had  to  be  allowed  to 
pass  free,  in  case,  through  the  neghgence  of  the  officer 
commanding  the  blockading  fleet,  no  declaration  of  blockade 
had  been  notified  to  the  local  authorities,  or  in  case,  in 
the  declaration  as  notified,  no  period  had  been  mentioned 
within  which  neutral  vessels  might  come  out  (Article  16). 

However  this  may  be,  the  declaration  remains  mi- 
ratified,  and  modifications  were  made  with  regard  to 
presumed  knowledge  of  the  existence  of  a  blockade, 
when  its  rules  were  put  into  force  by  the  Allied  Powers 
at  the  outbreak  of  the  World  War. 
The  §  385.  The  practice  of  States,  as  well  as  the  opinions 

PraSice    ^^  Writers,  have  differed  much  as  to  what  acts  of  a 
as  to        vessel  constitute  an  attempt  to  break  blockade. 
^itutes°°      (1)  The  Second  Armed  Neutrality  of  1800  sought  to 
Attempt   restrict  an  attempt  to  break  blockade  to  the  employ- 
to  break    jj^^ut  of  force  or  ruse  by  a  vessel  on  the  line  of  blockade 
for  the  purpose  of  passing  through.     This  was,  on  the 
whole,    the   practice   of   France,    which   moreover,    as 
stated  before,  required  that  the  vessel  should  before 
the  attempt  have  received  special  warning  from  one 
of  the  blockading  men-of-war.    Many  writers^  took 
the  same  standpoint. 

(2)  The   practice   of   other   States,   such   as   Japan, 
approved  by  many  writers,^  went  beyond  this,  and 

1  See    Hautefeuille,    ii.    p.    234 ;       p.  322. 
Kleen,  i.   §  137 ;    Gessner,   p.  202 ;  *  See   Bluntschli,   §  835  ;    Perels, 

Dupui's,  No.  185  ;  Fauchille,  Blocuf,        §  51  ;    Geffcken  in  Holtzendorff,   iv. 


BREACH  OF  BLOCKADE  531 

considered  that  an  attempt  to  break  blockade  had  been 
made  when  a  vessel,  with  or  without  force  or  ruse, 
endeavoured  to  pass  the  line  of  blockade  ;  when,  for 
instance,  a  vessel  destined  for  a  blockaded  place 
was  found  anchoring  or  cruising  near  the  hne  of 
blockade. 

(3)  The  practice  of  Great  Britain  and  the  United 
States  of  America  went  furthest,  since  it  considered 
that  an  attempt  to  break  blockade  had  been  made 
when  a  vessel,  not  destined  according  to  her  ship- 
papers  for  a  blockaded  port,  was  found  near  it  and 
steering  for  it ;  or  when  a  vessel,  destined  for  a  port 
the  blockade  of  which  was  diplomatically  notified, 
started  on  her  journey  knowing  that  the  blockade  had 
not  been  raised  (except  w^hen  the  port  from  which  the 
vessel  sailed  was  so  far  distant  from  the  scene  of  war 
as  to  justify  her  master  in  starting  for  a  destination 
known  to  be  blockaded  on  the  chance  of  finding  that 
the  blockade  had  been  removed,  and  with  an  inten- 
tion of  changing  her  destination  should  that  not  prove 
to  be  the  case).^  This  practice,  further,  apphed  the 
doctrine  of  continuous  voyages  ^  to  blockade,  for  it 
considered  that  an  attempt  to  break  blockade  was 
committed  by  a  vessel  which,  although  ostensibly 
destined  for  a  neutral  or  an  unblockaded  port,  in  reahty 
intended,  after  touching  there,  to  go  on  to  a  blockaded 
port.^ 

(4)  During  the  Civil  War,  the  American  Prize  Courts 
carried  the  practice  further  by  condemning  vessels 
for  breach  of  blockade  which  knowingly  carried  to  a 
neutral  port  cargo  ultimately  destined  for  a  blockaded 

p.  763;   Rivier,  ii.  p.  431.     See  also  42;   The   Betsey,    (1799)    1   C.   Rob. 

§   25    of    the    Prussian    Regulations  332. 

(1864)  concerning  Naval  Prizes,  and  '  On  this  doctrine,   see  below,   § 

Article  29   of   the   Japanese   Naval  400  n. 

Prize  Law.  ^  See  Holland,  Prize  Law,  §  134, 

^  See  Holland,  Prize  Law,  §  133,  and    the    case   of    The  Jamtt   Cook, 

and  U.S.  Naval  War  Code,  Article  (1810)  Edwards  261. 


532  BLOCKADE 

port,  and  by  condemning  for  breach  of  blockade  such 
cargo  ^  as  was  ultimately  destined  for  a  blockaded  port, 
when  the  carrying  vessel  was  ignorant  of  its  ulterior 
destination.  Thus  the  Bermuda,^  a  British  vessel  with 
a  cargo  part  of  which  was,  in  the  opinion  of  the  American 
courts,  ultimately  destined  for  the  blockaded  ports  of 
the  Confederate  States,  was  seized  on  her  voyage  to 
the  neutral  British  port  of  Nassau,  in  the  Bahama 
Islands,  and  condemned  for  breach  of  blockade  by  the 
American  courts.  The  same  happened  to  the  British 
vessel  Stephen  Hart,^  which  was  seized  on  her  voyage 
to  the  neutral  port  of  Cardenas,  in  Cuba.  And  in  the 
famous  case  of  The  Springbok,^  a  British  vessel  also 
destined  for  Nassau,  in  the  Bahama  Islands,  which 
was  seized  on  her  voyage  to  this  neutral  British  port, 
the  cargo  alone  was  finally  condemned  for  breach  of 
blockade,  since,  in  the  opinion  of  the  court,  the  vessel 
was  not  cognisant  that  the  cargo  was  intended  to  reach 
a  blockaded  port.  The  same  happened  to  the  cargo 
of  the  British  vessel  Peterhqff  ^  destined  for  the  neutral 
port  of  Matamoros,  in  Mexico.  The  British  Govern- 
ment dechned  to  intervene  in  favour  of  the  British 
owners  of  the  respective  vessels  and  cargoes.^ 

It  is  true  that  the  majority  of  authorities  '^  assert 
the  illegahty  of  these  judgments  of  the  American  Prize 
Courts,  but  it  is  a  fact  that  Great  Britain  at  the  time 
recognised  as  correct  the  principles  which  are  the  basis 
of  these  judgments. 

§  385a.  The  unratified  Declaration  of  London  sought 
to  effect  a  settlement  of  this  controversial  matter. 

^  But  not  the  vessel.  Laiv,    p.   38,  n.   2  ;    Phillimore,   iii. 

^  (1865)  3  Wall   514  §298;  Twiss,  Belligerent  Right  on  the 

»  nA(\'^\  9.  W;,ll'  '^-^(i  ^'3h  -S'ea.^  (1884),  p.  19 ;  Hall,  §  263 ; 

llO'^clJ     O       *»    fill.      OOij*  ^1  rr       .  /■•-!  _7  7  .7 

Oressner,  Ariegfuhrenae  una  neutrale 

(1866)0  Wall.  1.  Mdchte   (1877),   pp.    95-100;    Blunt- 

8  (1866)  5  Wall.  28.  gchli,  §  835;  Perels,  §51 ;  Fauchille, 

«  See  Pari.  Papers,  Misc. ,  No.  1        Blocus,  pp.  333-344  ;   Martens,  ii.  § 

(1900).  124.     See  also  Wharton,  iii.  §  362, 

'  See,  for  instance,  Holland,  Prize       p.  401,  and  Moore,  vii.  §  1276. 


BREACH   OF  BLOCKADE  ,  533 

Article  17  provided  that  '  neutral  vessels  may  not  be  What 
captured  for  breach  of  blockade  except  within  the  area  of  tu[|^d  an 
operations  of  the  mon-of-war  detailed  to  render  the  blockade  Attempt 
effective,'  and  Article  19  provided  that  '  whatever  may  be  Blockiule 
the  ulterior  destination  of  a  vessel  or  of  her  cargo,  she  may  according 

~^  to  the  un- 

not  be  captured  for  breach  of  blockade,  if,  at  the  moment,  ratified 
she  is  on  the  way  to  a  non-blockaded  port.'  tion  o^ 

According  to  these  provisions,  a  neutral  vessel,  to  be  London, 
guilty  of  an  attempt  to  break  blockade,  must  actually  have 
entered  the  area  of  operations  {rayon  d' action)  of  the  blockad- 
ing fleet.  This  area  of  operations  was  to  be  a  question  of 
fact  in  each  case.  '  When  a  Government  decides  to  under- 
take blockading  operations  against  some  part  of  the  enemy 
coast  it  details  a  certain  number  of  men-of-war  to  take 
part  in  the  blockade,  and  entrusts  the  command  to  an 
officer  whose  duty  it  is  to  use  them  for  the  purpose  of 
making  the  blockade  effective.  The  commander  of  the 
naval  force  thus  formed  posts  the  vessels  at  his  disposal 
according  to  the  line  of  the  coast  and  the  geographical 
position  of  the  blockaded  places,  and  instructs  each  vessel 
as  to  the  part  which  she  has  to  play,  and  especially  as  to 
the  zone  which  she  is  to  watch.  All  the  zones  watched 
taken  together  and  so  organised  as  to  make  the  blockade 
effective,  form  the  area  of  operations  of  the  blockading 
force.'  ^ 

But  the  mere  fact  that  a  neutral  vessel  had  entered  the 
area  of  operations  was  not  to  be  sufficient  to  justify  her 
capture  ;  she  had  also  to  be  destined  for,  and  be  on  her 
way  to,  the  blockaded  port.  If  she  passed  through  the 
area  of  operations  without  being  destined  for,  and  on  her 
way  to,  the  blockaded  port,  she  was  not  attempting  to 
break  the  blockade.  Even  should  the  ulterior  destina- 
tion of  a  vessel  or  her  cargo  be  the  blockaded  port,  she  was 
not  to  be  regarded  as  attempting  to  break  the  blockade, 
if,  at  the  moment  of  visit,  she  was  really  on  her  way  to  a 
non-blockaded  port  (Article  19).  However,  she  had  to  be 
really,  and  not  only  apparently,  on  her  way  to  a  non- 

^  Report  of  the  Drafting  Committee  on  Article  17. 


534  BLOCKADE 

blockaded  port ;  if  it  could  be  proved  that  in  reality  her 
immediate  destination  was  the  blockaded  port  and  that 
she  only  feigned  to  be  destined  for  a  non-blockaded  port, 
she  might  be  captured,  for  she  was  actually  attempting 
to  break  the  blockade.^ 

However  that  may  be,  these  provisions  excluded 
the  application  to  blockade  of  the  doctrine  of  continu- 
ous voyage  in  any  form.  But  at  the  outbreak  of  the 
World  War  the  declaration  had  not  been  ratified,  and 
though  at  first  the  AlHed  Governments  adopted  most 
of  its  rules,  including  Article  19,  in  March  1916  ^  they 
abandoned  that  article,  and  declared  that  the  principle 
of  continuous  voyage  or  ultimate  destination  should 
apply  to  blockade.  Later,  as  has  already  been  ex- 
plained, they  abandoned  the  declaration  altogether.^ 
When  §  386.  Although  blockade  inwards  interdicts  ingress 

norcon-^^  to  all  vcsscls,  if  uot  especially  Hcensed,^  necessity  makes 
Mdered     exccptious  to  the  rulc. 

Breach  of  J- 

Biockade.  Accordiug  to  the  practice  which  before  the  World  War 
had  been  quite  general,  whenever  a  vessel  either  by  need  of 
repairs,^  stress  of  weather,^  want  of  water  '^  or  provisions, 
or  upon  any  other  ground,  was  absolutely  obhged  to 
enter  a  blockaded  port,  such  ingress  did  not  constitute 
a  breach  of  blockade.  On  the  other  hand,  according 
to  British  practice  at  any  rate,  ingress  did  not  cease 
to  be  breach  of  blockade  if  caused  by  intoxication  of 
the  master,^  ignorance  ^  of  the  coast,  loss  of  compass,^® 
endeavour  to  get  a  pilot,^  and  the  hke,  or  an  attempt 
to  ascertain  ^^  whether  the  blockade  was  raised. ^^ 

^  See  the  Report  of  the  Drafting  262. 

Committee  on  Article  19.  *  The   Adonis,    (1804)  5  C.    Rob. 

^  Londcm  Gazette,  March  31, 1916.  256. 

^  See  above,  g§  292,  368.  "  The  Elizabeth,  (1810)  Edwards 

'  See  above,  §  370.  198. 

*  The  Charlotta,   (1810)  Edwards  "  The  Neutralitet,  (\SQ5)&C.'Roh. 

252.  30. 

"   The  Fortuna,  (1803)  5  C.  Rob.  27.  ^-  The  Spes  and  Irene,  (1804)  5  C. 

'   The  Hurtige  Hane,  (1799)  2  C.  Rob.  76. 

Rob.  124.  13  yge  Holland,  Prize  Law,  §§  135- 

«  The  Shepherdess,  ( 1804)  5  C.  Rob.  136. 


BREACH  OF  BLOCKADE  535 

The  unratified  Declaration  of  London  recognised  that 
necessity  makes  exceptions  to  the  rule  that  vessels  may 
not  enter  a  blockaded  port.  Article  7  provided  that  '  in 
circumstances  of  distress,  acknowledged  by  an  officer  of 
the  blockading  force,  a  neutral  vessel  may  enter  a  place 
under  blockade,  and  subsequently  leave  it,  provided  that 
she  has  neither  discharged  nor  shipped  any  cargo  there.' 
However,  this  article  did  not  define  circumstances  of  distress 
and  made  it  a  condition  that  those  circumstances  must 
be  acknowledged  by  an  officer  of  the  blockading  force .^ 
Everything  was  therefore,  prima  facie  at  any  rate,  left  to 
the  consideration  of  that  officer.  But  once  he  had  acknow- 
ledged that  the  vessel  was  in  distress,  he  was  in  duty  bound  ^ 
to  allow  her  to  enter  the  blockaded  port,  unless  he  relieved 
the  distress  himself. 

§  387.  There  are  a  few  cases  of  egress  which,  according  when 
to  the  practice  of  Great  Britain  and  most  other  States  ^Jt  con" 
before  the  World  War,  were  not  considered  breaches  sidered 

.  .      Breach  of 

of  blockade  outwards.^  Thus  a  vessel  which  was  m  Blockade. 
a  blockaded  port  before  the  commencement  of  the 
blockade'*  was  allowed  to  sail  from  it  in  ballast,  as 
was  also  a  vessel  that  had  entered  during  a  blockade, 
either  in  ignorance  of  it,  or  with  the  permission  of  the 
blockading  squadron.^  Thus,  further,  a  vessel,  the 
cargo  of  which  w^as  put  on  board  before  the  commence- 
ment of  the  blockade,  was  allowed  to  leave  the  port 
afterwards  unhindered.*^  Thus,  again,  a  vessel  obhged 
by  absolute  necessity  to  enter  a  blockaded  port  was 
afterwards   allowed   to   leave   it   mihindered.     And    a 

^  See  the  case  of  The  Clumberhall,  -  See  Report  of  the  Drafting  Com- 

a  British  vessel  condemned  by  the  mittee  on  Article  7. 

Italian  Prize  Court  for  having  entered  3  ggg  Holland,  Prize  Law,  §  130; 

a  blockaded  area  during  the  Turco-  Twiss,    ii.    §    113;    Phillimore,    iii. 

Italian  War,  in  1912,  under  a  plea  §  313 

of  distress,  without  tirst  having  had  ,  y^^  Frederick  Moltke,  (1798)  1 

the  cause  of  distress  verined  by  the  p   t>  ,     q^ 

blockading    fleet.       The   facts    were  \   nv,      t'       /i-tnn\  o  r>   t.  v.    n« 

stated  in  the  House  of  Commons  on  '   ^^  ^""°.  <l-99)  2  C.  Rob.  116. 

May  25,    1914;     see  Harisard,    vol.  *   The   Vrouw  Judith,  (1799)  1  C. 

63,  p.  108.  Rob.  150. 


536  BLOCKADE 

vessel  employed  by  the  diplomatic  envoy  of  a  neutral 

State  for  the  exclusive  purpose  of  sending  home  from 

a  blockaded  port  distressed  seamen  of  his  nationahty  ^ 

was  also  allowed  to  pass  unhindered.^ 

Passage        §  388.  A  breach  of  blockade  can  only  be  committed 

Unblock-  by  passing  through  the  blockaded  approach.     There- 

clnli  no  ^^^^'  ^^  *^^  maritime  approach  to  a  port  is  blockaded, 

Breach  of  but  an  inland  canal  leads  from  it  to  another  unblockaded 

'  port  or  to  a  neutral  port,  no  breach  of  blockade  is 

committed  by  the  egress  or  the  ingress  of  a  vessel 

passing  such  canal  for  the  purpose  of  reaching  the 

blockaded  port.^ 

V 

CONSEQUENCES  OF  BREACH  OF  BLOCKADE 

See  the  literature  quoted  above  at  the  commencement  of  §  368. 

Capture  §  389.  It  is  Universally  recognised  that  a  vessel  may 
Blockade-  ^^ty  t)e  capturcd  for  a  breach  of  blockade  while  in 
Vessds^  ^eZzcto ;  that  means  during  an  attempt  to  break  the 
blockade,  or  during  the  breach  itself.  But  here  again 
practice  as  well  as  theory  have  differed  much,  since 
there  has  been  no  unanimity  with  regard  to  the  extent 
of  time  during  which  an  attempted  breach  or  an  actual 
breach  could  be  said  to  be  continuing. 

It  has  already  been  stated  *  that  it  has  been  a  moot 
point  from  what  moment  a  breach  of  blockade  can  be 
said  to  have  been  attempted,  and  that,  according  to 

^   The    Rose    in    Bloom,    (1811)    1  coming  out  of  a  blockaded   port  in 

Dodson  55.  the  circumstances   there  mentioned 

^  The    unratified    Declaration    of  must  be  allowed  to  pass  free.      But 

London  recognised   by  Article    7 —  bej'ond  these  the  declaration  did  not 

see  above,  §  386 — that  a  vessel  which,  specify  any  cases   in    which    egress 

on    account   of    distress,    entered   a  was  not  to  be  considered  breach  of 

blockaded  port,  must  be  allowed  to  blockade. 

leave    it    afterwards,    provided    she  3  The  Stert,  (1801)  4  C.   Rob.  65. 

had  neither  discharged  nor  shipped  g^^  PhiUimore,  iii.  §  314. 
cargo    there ;    and   Article    16 — see 

above,  §  384 — provided  that  a  vessel  *  Above,  §  385, 


CONSEQUENCES  OF  BREACH  OF  BLOCKADE    537 

the  practice  of  Great  Britain  and  the  United  States, 
the  fact  that  a  vessel  destined  for  a  blockaded  port 
was  starting  on  her  voyage  constituted  an  attempt. 
It  is  obvious  that  tliis  controversy  bears  upon  the 
question  from  what  point  of  time  a  blockade-running 
vessel  must  be  considered  in  delicto. 

But  it  has  been  hkewise  a  moot  point  when  the 
period  of  time  during  which  a  blockade-running  vessel 
might  be  said  to  be  in  delicto  came  to  an  end.  Accord- 
ing to  Continental  theory  and  practice,  the  vessel  has 
been  considered  to  be  in  delicto  only  so  long  as  she  is 
actually  on  the  hne  of  blockade,  or,  having  fled  from 
there,  so  long  as  she  is  being  pursued  by  one  of  the 
blockading  cruisers.  On  the  other  hand,  according  to 
the  practice  of  Great  Britain  ^  and  the  United  States,^ 
a  blockade-rmining  vessel  has  been  held  to  be  in  delicto 
so  long  as  she  has  not  completed  her  voyage  from  the 
blockaded  'port  to  the  port  of  her  destination  and  hack  to 
the  port  from  which  she  started  originally,  the  voyage  out 
and  home  being  considered  one  voyage.  But  a  vessel 
has  been  held  to  be  in  delicto  only  so  long  as  the  blockade 
continued,  capture  being  no  longer  admissible  in  case 
the  blockade  had  been  raised  or  had  otherwise  come  to 
an  end. 

The  Declaration  of  London  sought  to  settle  the  contro- 
versy, for,  according  to  Article  20,  a  vessel  was  to  be  in 
delicto  so  long  only  ^  as  she  was  being  pursued  by  a  man- 
of-war  of  the  blockading  force  (and  not  by  any  other  cruiser), 
and  she  might  no  longer  be  captured  if  the  pursuit  was 
abandoned  or  if  the  blockade  was  raised.  Under  this 
rule,  a  blockade -breaking  vessel  was  Uable  to  capture  so 
long  as  the  pursuit  lasted,  whether  or  no  she  was  still 
\vithin  the  area  of  operations  ;   even  if  for  a  while  she  had 

^   The  Wdvaart  van  Pillaw,  (11^^)  «  See     U.S.     Naval     War    Code, 

2C.  Rob.  128:  The  General  Hamilton,        Article  44. 
(1805)  6  C.  Rob.  61.  »  See  below,  §  428a. 


538  BLOCKADE 

taken  refuge  in  a  neutral  port,  she  might,  on  coming  out, 
be  captured,  provided  that  the  captor  was  one  of  the  men- 
of-war  of  the  blockading  force  which  had  pursued  her  and 
waited  for  her  outside  the  port  of  refuge.^  However,  the 
declaration  has  not  been  ratified. 

Penalty  §  390.  Capture  being  effected,  the  blockade-runner 
o7  ^^^^  must  be  sent  to  a  port,  to  be  brought  before  a  Prize 
Blockade.  Court.  For  this  purpose  the  crew  may  be  temporarily 
detained,  as  they  will  have  to  serve  as  witnesses.  In 
former  times  the  crew  could  be  imprisoned,  and  it  is 
said  that  even  capital  ^  punishment  could  have  been 
pronounced  against  them.  But  since  the  eighteenth 
century,  this  practice  of  imprisoning  the  crew  has  been 
abandoned,  and  nowadays  the  crew  may  not  even  be 
made  prisoners  of  war,  but  must  be  released  as  soon 
as  the  Prize  Court  has  pronounced  its  decision.^  The 
only  penalty  which  may  be  pronounced  is  confiscation 
of  the  vessel  and  the  cargo.  But  the  practice  ^  of  the 
several  States  has  differed  much  concerning  the  penalty 
for  breach  of  blockade.  According  to  British  and 
American  practice  before  the  World  War,  confiscation  of 
both  vessel  and  cargo  might  take  place  in  case  the  owners 
of  the  vessel  were  identical  with  those  of  the  cargo. 
In  case  vessel  and  cargo  had  not  the  same  owners, 
confiscation  of  both  took  place  only  when  the  cargo  con- 
sisted of  contraband  of  war  or  the  owners  knew  of  the 
blockade  at  the  time  the  cargo  was  shipped  for  the  block- 
aded port.^  It  mattered  not  whether  the  captured  vessel 
which  carried  the  cargo  had  herself  actually  passed 
through  the  blockaded  line,  or  whether  the  breach  of 

^  See  the  Report  of  the  Drafting  ^  The  Mercurius,  (1798)  1  C.  Rob. 

Committee  on  Article  20.  80  ;    The  Columbia,  (1799)  1  C.  Rob. 

*  See    Bynkershoek,     Quaestiones  154:;  The  Alexander,  {ISOl)  4 CRoh. 
Jjirispublici,  i.  c.  11.  93;     The  Adonis,  (1804)  5  C.   Rob. 

*  SeeCalvo,  v.  §§2897-2898  ;  U.S.  256  ;   The  Exchange,  (1808)  Edwards 
Naval  War  Code,  Article  45.  39 ;  The  Panaghia  Rhomba,  (1858)  12 

*  See  Fauchille,  Blocus,  pp.  357-  Moore  P. C.  168.    See  Phillimore,  ill. 
394  ;   Gessner,  pp.  210-214  ;   Perels,  §§  318-319. 

§  51,  pp.  276-278. 


THE   SO-CALLED  LONG-DISTANCE  BLOCKADE       539 

blockade  was  effected  through  the  combined  action  of 
lighters  and  the  vessel,  the  hghters  passing  the  hne  and 
discharging  the  cargo  into  the  vessel  near  the  hne,  or 
vice  versa.^  The  cargo  alone  was  confiscated  accord- 
ing to  the  judgments  of  the  American  Prize  Courts 
during  the  Civil  War  in  the  case  of  The  Springbok  and 
in  similar  cases  -  when  goods  ultimately  destined  for 
a  blockaded  port  were  sent  to  a  neutral  port  on  a  vessel 
whose  owners  were  ignorant  of  this  ulterior  destina- 
tion of  the  goods. 

The  Declaration  of  London  proposed  to  settle  the  matter 
by  a  very  simple  rule,  for  according  to  Article  21  the  penalty 
for  blockade -breaking  was  to  be  condemnation  of  the 
vessel  in  all  cases,  and  condemnation  of  the  cargo  also, 
unless  the  owner  proved  that  at  the  time  of  the  shipment 
of  the  goods  the  shipper  neither  knew,  nor  could  have  known, 
of  the  intention  of  the  vessel  to  break  the  blockade.  The 
case  in  which  the  whole,  or  part,  of  the  cargo  consisted  of 
contraband,  was  not  mentioned  by  Article  21,  but  its 
condemnation  is  a  matter  of  course.  However,  the  declara- 
tion has  not  secured  ratification. 

VI 

THE   SO-CALLED  LONG-DISTANCE  BLOCKADE 

§  390a.  In  the  foregoing  sections  of  this  chapter  the  Concep- 
conception  of  blockade  as  understood  before  the  World  Long" 
War,  and  the  rules  of  International  Law^  concerning  ^^^'^"f 

'  ^  Blockade. 

it,  have  been  explained  and  discussed.  The  World 
War  did  not  illustrate  or  develop  these  rules,  because 
the  few  blockades  that  were  declared — blockades  of  the 
coast  of  German  East  Africa,  of  the  Cameroons,  of 
Bulgaria  on  the  Mgesm  Sea,  of  Asia  Mnor,  and  a  few 
others  ^ — provoked  httle  or  no  controversy,  and  played 

1   The  Maria,  (1805)  6  C.  Rob.  201.  «  Details  in  Garner,  ii.  §  510. 

*  See  above,  §  385  (4). 


540  BLOCKADE 

no  part  in  the  major  operations  of  the  war.  The 
Central  Powers,  whose  surface  warships  were  only 
able  to  leave  their  base  for  an  occasional  raid,  were 
certainly  in  no  position  to  maintain  an  effective  blockade 
in  accordance  with  the  rules  set  forth  in  this  chapter, 
while  the  Allied  and  Associated  Powers,  confronted  by 
mines  and  submarines  along  a  coast-hne  highly  organised 
for  defence,  found  it  impracticable  to  estabhsh  a  blockade 
of  Germany  of  a  type  known  in  former  wars.  Instead, 
they  resorted  to  what  is  called  a  long-distance  hlochade} 

It  has  already  been  said  ^  that  when,  in  February 
1915,  Germany  declared  the  waters  round  the  British 
Isles  to  be  a  war  zone,  and  proclaimed  that  all 
enemy  ships  found  in  that  area  would  be  destroyed, 
and  neutral  ships  might  be  exposed  to  danger,  Great 
Britain  announced  that,  in  concert  with  her  alhes, 
she  would  endeavour  to  prevent,  as  a  measure  of  re- 
tahation,  commodities  of  any  kind  from  reaching  or 
leaving  Germany.  The  Order  in  Council  of  March  11, 
1915,  which  gave  effect  to  this  decision,  was  expressly 
stated  to  be  retahatory,  and  did  not  speak  of  estabhsh- 
ing  a  blockade,  with  the  recognised  rules  for  which  it 
did  not  conform.  But  only  a  few  days  later,  the  British 
Foreign  Secretary  announced  the  new  policy  to  the 
United  States  ambassador  in  the  words :  '  the  British 
fleet  has  instituted  a  blockade,  effectively  controUing 
by  cruiser  "  cordon  "  all  passage  to  and  from  Germany 
by  sea.'  ^ 

This  long-distance  blockade  was  promptly  challenged 
by  neutrals,  and  in  particular  by  the  United  States  of 
America.^  She  admitted  that,  as  great  changes  had 
occurred  in  the  conditions  and  means  of  naval  warfare 

'  See  Garner,  ii.  §§509-531,  and  in  '  Pari.     Papers,     Misc.,     No.     6 

A.J.,  ix.  (1915),  pp.  843-857  ;  Perrin-  (1915),  Ctl.  7816,  p.  26. 

jaquet  in  R.G.,  xxiv.  (1915),  pp.  210-  '  In  Notes  dated  April  2,  1915,  and 

255;Piggott,  The  Neutral  Merchant  November  5,    1915:    Pari.    Papers, 

(1915).  Misc.,  No.  14  (1916),  Cd.  8233,  p.  1, 

*  See  above,  §  319.  No.  15  (1916),  Cd.  8234,  p.  2. 


THE   SO-CALLED   LONG-DISTANCE   BLOCKADE        541 

since  the  rules  hitherto  governing  legal  blockade  were 
formulated,  a  *  close '  blockade  with  its  cordon  of 
ships  in  the  immediate  offing  of  the  blockaded  ports 
might  be  no  longer  practicable  ;  but  she  complained 
that  the  British  measures  did  not  even  conform  with 
'  the  spirit  and  principles  of  the  essence  of  the  rules 
of  war/  Her  main  grounds  of  criticism  were  (1)  that 
these  measures  amounted  to  a  blockade  of  neutral 
ports — '  so  great  an  area  of  the  high  seas  is  covered, 
and  the  cordon  of  ships  is  so  distant  from  the  territory 
afiected,  that  neutral  vessels  must  necessarily  pass 
through  the  blockading  force  in  order  to  reach  important 
neutral  ports  which  Great  Britain,  as  a  belhgerent,  has 
not  the  legal  right  to  blockade  ' ;  ^  (2)  that,  as  trade 
between  Scandinavian  ports  and  German  Baltic  ports 
was  not  intercepted,  these  measures  did  not  '  bear  with 
equal  severity '  upon  all  neutrals ;  ^  and  (3)  that  they 
were  not  effective,  since  '  German  coasts  are  open  to 
trade  with  the  Scandinavian  countries  '  and  *  German 
naval  vessels  cruise  both  in  the  North  Sea  and  the 
Baltic  and  seize  and  bring  into  German  ports  neutral 
vessels  bound  for  Scandinavian  and  Danish  ports.'  ^ 
The  United  States  argued  that  *  measured  by  the 
three  universally  conceded  tests  above  set  forth  '  the 
British  long-distance  blockade  could  not  be  regarded 
as  constituting  '  a  blockade  in  law,  in  practice,  or  in 
efiect/  4 

To  these  arguments  the  British  Government  repHed  ^ 
that  these  measures  amounted  to  *  no  more  than  an 
adaptation  of  the  old  principles  of  blockade  to  the 
peculiar  circumstances  '  ®  of  the  World  War,  and  that, 
although   they   ought   not   to   be   judged   with   strict 

^  Not€  of  April  2,  1915.     See  also  *  Note  of  November  5,  1915,  No. 

Note  of  November  5,  1915,  No.  21.  22. 

'  Note  of  April  2,  1915.     See  also  ^  In  Notes  dated  July  23,   1915, 

Note  of  November  5,  1915,  No.  20.  and  April  24,   1916:    Pari.   Papers, 

*  Note  of  November  5,  1915,  No.  ihid. 

19.  *  Not€  of  July  23,  1915,  No.  2. 


542  BLOCKADE 

reference  to  the  rules  applicable  to  blockade,^  they  were 
in  harmony  with  the  spirit  of  those  rules.^  To  the 
American  complaint  (1)  that  they  constituted  a  blockade 
of  neutral  ports,  Great  Britain  rephed  that  '  if  the 
blockade  can  only  become  effective  by  extending  it  to 
enemy  commerce  passing  through  neutral  ports,  such 
an  extension  is  defensible  and  in  accordance  with 
principles  which  have  met  with  general  acceptance,'^ 
that  the  AlHed  Governments  made  every  effort  to 
discriminate  between  bona  fide  neutral  commerce  and 
that  intended  for  Germany,'*  and  that  they  had  '  tem- 
pered the  severity '  with  which  their  measures  might 
press  upon  neutrals  by  imposing  penalties  less  drastic 
than  those  invariably  infhcted  for  a  breach  of  the  old 
form  of  blockade.^  To  the  contention  (2)  that  it  was 
not  impartial,  she  rephed  that  *  the  passage  of  com- 
merce to  a  blockaded  area  across  a  land  frontier  or 
across  an  inland  sea  has  never  been  held  to  interfere 
with  the  effectiveness  of  the  blockade  ...  if  the 
doctrine  of  continuous  voyage  may  rightly  be  apphed 
to  goods  going  to  Germany  through  Rotterdam,  on 
what  ground  can  it  be  contended  that  it  is  not  equally 
apphcable  to  goods  with  a  similar  destination  passing 
through  some  Swedish  port  and  across  the  Baltic  or 
even  through  neutral  waters  only  ?  '  ^ 

With  reference  to  the  complaint  (3)  that  the  long- 
distance blockade  was  not  effective,  Great  Britain 
expressed  a  doubt  whether  there  had  ever  been  a 
blockade  where  the  ships  which  slipped  through  bore 
so  small  a  proportion  to  those  which  were  intercepted.'^ 

§  3906.  There  the  legal  controversy  was  broken  off  ;  ® 

^  Note  of  April  24,  1916,  No.  35.  ^  ^   rough   note   in   the   author's 

*  Note  of  April  24,  1916,  No.  33.  manuscript  shows  that  he  intended 

*  Note  of  Julj'  23,  1915,  No.  9.  to  recognise  the  legality  of  a  long- 

*  Note  of  April  24,  1916,  No.  26.  distance  blockade,  and  to  lay  down 

*  Note  of  July  23,  1915,  No.  11.  certain  conditions  with  which  it 
'  Note  of  April  24,  1916,  No.  35.  ought  to  conform.  Apparently,  he 
'  Note  of  April  24,  1916,  No.  33.  would  have  provided  for  notification, 


THE   SO-CALLED   LONG-DISTANCE    BLOCKADE       543 

Great   Britain   and   her  allies   had   in   the   meantime  The 
applied  themselves  to  the  difficult  task  of  discriminat-  orthe°" 
ing  between  bona  fide  neutral  commerce  and  that  in-  c^^trai 
tended  for  Germany.     They  set  up  departments  which  during 
investigated   the  machinery,   and  the  subterfuges,   of  wlr.  ^^ 
German  overseas  trade  ;    they  identified  goods  origi- 
nating in  Germany,  b}"-  insisting  that  all  exports  from 
adjacent  countries  should   be   accompanied   by  certi- 
ficates  of   origin.     They   induced   importers   in   these 
countries    to    form    representative    associations,    and 
entered  into  agreements  with  these  associations  under 
which  goods  consigned  to  them  were  generally  exempted 
from  interference,  in  return  for  a  guarantee  that  neither 
the  goods,  nor  their  products,  should  reach  the  enemy 
in  any  form.     Of  such  associations  the  Netherlands 
Overseas  Trust  was  the  first ;    others  were  formed  in 
Sweden,  Norway,   Denmark,    and   Switzerland.     They 
persuaded  many  shipping  hues,  with  a  view  to  avoid- 
ing the  costly  delay  of  elaborate  visit  and  search,  to 
undertake,  if  so  required,  to  bring  back  to  England 
any  suspected   goods  which   were  not  discharged   at 
the  port   of   examination,  or  to  store  them  until  the 
end  of  the  war,  or  to  hand  them  to  their  consignees 
only   under   stringent   guarantees   that   neither   they, 
nor   their   products,   would   reach   the   enemy.     They 
persuaded  other  shipping  Hnes  only  to  accept  goods 
for  Northern  Europe  w^hen  accompanied  by  a  certi- 
ficate from  the  Alhed  authorities  that  they  would  be 
allowed  to  pass  the  blockade.     They  refused  to  supply 
bimker   coal    to   neutral    vessels   unless    their   owners 
would  undertake  that  no  vessel  ow^ned,  chartered,  or 
controlled  by  them  should  trade  with  an  enemy  port, 
or  carry  goods  of  enemy  origin  or  destination.    Finally, 

and   would    have    insisted    that    it  decided  whether  to  adopt  the  British 

should  be  effective,  and  that  vessels  or  the  American  view  with  regard 

should  not  be  condemned  for  breach  to  so-called  blockade  of  neutral  ports 

of  it.     It  would  seem  that  he  had  not  when  death  interrupted  his  work. 


544  BLOCKADE 

they  sought  to  make  agreements  with  representative 
bodies  of  neutral  traders  under  which  the  import  of 
any  given  article  to  a  neutral  coimtry  was  limited  to 
the  amount  of  its  true  domestic  requirements.^ 

However,  the  aim  of  the  Alhed  Governments  was  not 
wholly  reahsed,  even  by  these  measures,  as  long  as  the 
United  States  remained  neutral.  But  after  she  had 
entered  the  war,  in  April  1917,  she  prohibited  exports 
to  the  neutral  comatries  of  Northern  Europe  except 
under  hcences  which  were  only  given  in  return  for 
satisfactory  guarantees.  This  she  was  legally  entitled 
to  do,  and  the  isolation  of  the  Central  Empires  was 
complete.^ 

*  These  measures  are  all  described       Cd.  8145. 
in  Pari.  Papers,  Misc.,  No.  2(1916),  *  See  Gamer,  ii.  §  530. 


CHAPTER  IV 

CONTRABAND 
I 

CONCEPTION   OF  CONTRABAND 

Grotius,"iii.  c.  1,  §  5 — Bj'nkershoek,  Quaeitionett  Jurit  j)ublici,  i.  cc.  ix. -xii. — 
Vattel,  iii.  §§  111-113— Hall,  §§  236-247— Lawrence,  §§  253-259— West- 
lake,  ii.  pp.  277-302,  and  Pa/5ers,  pp.  362-392,  461-474,  519-522— Maine, 
pp.  96-122— Manning,  pp.   352-399— Phillimore,  iii.  §§  226-284- Twnas, 
ii.  §§  121-151— Halleck,  ii.  pp.  243-270— Taylor,  §§  653-666— Walker, 
§§  73-75— Wharton,  iii.  §§  368-375— Hershey,  Nos.  496-512— Moore,  vii. 
§§   1249-1263— Wheaton,    §§  476-508— Bluntschli,    §§  801-814— Heffter, 
§§  158-161— Geffcken  in  Holtzendorff,  iv.  pp.   713-731— Gareis,  §  89— 
Liszt,  §  42— Ullmann,  §§  193-194— Bonfils,  No.  1535-1588'^— Despagnet, 
Nos.  705-715  <er— Rivier,  ii.  pp.  416-423— Nys,  iii.  pp.  626-670— Calvo, 
V.  §§  2708-2795— Fiore,  iii.  Nos.  1591-1601,  and  Cofle,  Nos.  1850-1858— 
Martens,  ii.  §  136— Kleen,  i.  §§  90-102— Boeck,  Nos.  606-659— Pillet, 
pp.  315-330— Gessner,  pp.  70-144— Perels,  §g  44-46— Testa,  pp.  201-220— 
Lawrence,  War,  pp.  140-174 — Ortolan,  ii.  pp.  165-213 — Hautefeiiille,  ii. 
pp.  69-173  -Dupuis,  Nos.  199-230,  and  Guerre,  Nos.  137-171— Bernsten, 
§  9  — Nippold,  ii.  §  35  — Takahashi,  pp.  490-525  —  Schramm,  §    10  — 
Holland,  Prize  Law,  §§  57-87— U.S.  Naval  War  Code,  Articles  34-36— 
Heineccius,  De  navihxu  oh  Vecturam  vetitarum  Mercium  commissi^  Dis- 
aertatio  (1740) — Huebner,  De  laSaisie  des  Bdtimenta  neutres,  2  vols.  (1759) 
— Valin,  TraM  des  Prises,  2  vols.  (1763) — Martens,  Essai  sur  les  Arma- 
teurs,  lea  Prises,  et  surtout  les  Reprises  (1795) — Lampredi,  Del  Commercio 
dei  Popidi  neutrali  in  Tempo  di  Ouerra  (1801) — Tetens,   Considerations 
sur  les  Droits  reciproques  des  Puissances  belligerantes  et  des  Puissances 
neutres  sur  J/er  (1805)— Pistoye  et  Duverdy,  Traitc  des  Prises  maritimes, 
2  vols.  (1855)— Pratt,  The  Law  of  Contraband  of  War  (1856)— Moseley, 
}Vhat  is  Contraband  and  what  is  not  ?  ( 1 86 1 ) — Upton,  The  Law  of  Nations 
affecting  Commerce  during  War  (1863) — Lehraann,  Die  Zufuhr  von  Kriegs- 
Iconterbandewaren,  etc.  (1877)— Kleen,  De  Contrehande  de  Guerre  et  des 
Transports  interdits  aux  Neutres  (1893) — Vossen,  Die  Konterbande  des 
Krieges  (1896) — Hirsch,  Kriegskonterbande  und  verbotene  Transporte  in 
Kriegszeiten  (1897) — Manceaux,  De  la  Contrehande  de  Guerre  (1899) — 
Brochet,  De  la  Contrebande  de  Guerre  (1900) — Pincitore,  II  contrabbando 
di  Guerra  (1902)— Rem j',  Theorie  de  la  Continuaute.  du  Voyage  en  mati&re 
de  Blocus  et  de  Contrebande  de  Guerre  (1902) — Knight,  Des  £tats  neutre$ 
VOL.  II.  2  M 


546  CONTRABAND 

au  point  de  vue  de  la  Contrebande  de  Ouerre  (1903) — Wiegner,  Die 
Kriegsl'onlerbande  (1904)  —  Atherley -Jones,  Commerce  in  War  (1907), 
pp.  1-91  and  253-283 — Hold,  Die  Kriegskonterbande  (1907) — Hansemann, 
Die  Lehre  von  der  einheitlichen  Reise  im  Rechte  der  Blockade  und  Kriegs- 
konterbande (1910) — Hirsclimann,  Das  iniernationale  Prisenrecht  (1912), 
§§  24-30— Wehberg,  pp.  97-123— Garner,  ii.  §§  495-508a— Piggott,  The 
Neutral  Merchant  (1915) — Pyke,  The  Law  of  Contraband  of  War  (1915), 
and  in  the  Law  Quarterly  Review,  xxxii.  (1916),  pp.  50-69  (The  Kim  case) 
— Westlake  in  R.L,  ii.  (1870),  pp.  614-635— Kleen  in  R.L,  xxv.  (1893), 
pp.  7,  124,  239,  389,  and  xxvi.  (1894),  pp.  214-217— Bar  in  R.L,  xxvi. 
(1894),  pp.  401-414— Brocher  de  la  F16ch6re  in  R.L,  2nd  Ser.  i.  (1899), 
pp.  337-353— Fauchille  in  R.G.,  iv.  (1897),  pp.  297-323— Kleen  in  R.O., 
xi.  (1904),  pp.  353-302 — Gover  in  the  Journal  of  Comparative  Legislation, 
New  Ser.  ii.  (1900),  pp.  118-130— Kennedy  and  Randall  in  the  Law 
Quarterly  Review,  xxiv.  (1908),  pp.  59-75,  316-327,  and  449-464— General 
Report  presented  to  the  Naval  Conference  of  London  by  its  Drafting 
Committee,  Articles  22-44— Moore  in  R.L,  2nd  Ser.  xiv.  (1912),  pp.  221- 
247 — Phillimore  in  the  Journal  of  Comparative  Legislation,  New  Ser. 
XV.  (1915),  pp.  223-238— Perrinjaquet  in  R.G.,  xxii.  (1915),  pp.  127-238. 

Definition  §  391.  The  term  contraband  is  derived  from  the 
blnd°7^  Itahan  '  contrabbando/  which,  itself  deriving  from  the 
War.  Latin  '  contra  '  and  '  bannum  '  or  '  bandum/  means 
'  in  defiance  of  an  injunction/  Contraband  of  war  ^ 
is  the  designation  of  such  goods  as  by  either  belhgerent 
are  forbidden  to  be  carried  to  the  enemy  on  the  ground 
that  they  enable  him  to  carry  on  the  war  with  greater 
vigour.  But  tliis  definition  is  only  formal,  as  it  does 
not  state  what  kinds  of  goods  belong  to  the  class  of  con- 
traband. This  has  been  much  controverted.  Through- 
out the  seventeenth,  eighteenth,  and  nineteenth  cen- 
turies, the  matter  stood  as  Grotius  had  explained  it. 
Although  he  did  not  employ  the  term  contraband, 
which  only  came  into  general  use  after  his  time,  he 
treated  of  the  matter,  and  distinguished  ^  three  different 

^  Although— see  above,  §§  173-174  (1915),  pp.  29-54.     The  same  work 

— prevention  of  carriage  of  contra-  (pp.    100-104)    gives   an    account   of 

band    is    a    means    of    sea    warfare  the  attempt  to  abolish  contraband 

against  the  enemy,  it  chiefly  concerns  altogether. 

neutral    commerce,    and    is,    there-  ^  See  Grotius,  iii.  c.  1,  §5:   'Sunt 

fore,  more  conveniently  treated  with  res  qu;e  in  bello  tantum  usum  habent, 

neutrality. — A  good  short  survey  of  ut  arma  :    sunt  quae  in  bello  nullum 

the  origin  and  development  of  the  habent  usum,  ut  quae  voluptati  inser- 

modern  law  of  contraband  is  given  viunt:  sunt  quae  et  in  bello  et  extra 

by   Pyke,    The  Law  of  Contraband  bellura  usum   habent,   ut   pecuniae, 


CONCEPTION   OF   CONTRABAND  547 

kinds  of  articles.  Firstly,  those  which,  as  arms  for 
instance,  can  only  be  made  use  of  in  war,  and  which 
are,  therefore,  always  contraband.  Secondly,  those,  as 
for  example  articles  of  luxury,  which  can  never  be  made 
use  of  in  war  and  which,  therefore,  are  never  contra- 
band. Thirdly,  those  which,  as  money,  provisions, 
ships,  and  articles  of  naval  equipment,  can  be  made 
use  of  in  war  as  well  as  in  peace,  and  which  are,  on 
account  of  their  ancipitous  use,  contraband  or  not 
according  to  the  circumstances  of  the  case.  In  spite 
of  Bynkershoek's  decided  opposition  ^  to  this  distinc- 
tion, the  practice  of  most  belhgerents  has  been  in  con- 
formity with  it.  A  great  many  treaties  have,  from 
the  begimiing  of  the  sixteenth  century,  been  concluded 
between  many  States  for  the  purpose  of  fixing  what 
articles  belonging  to  the  class  of  ancipitous  use  should, 
and  what  should  not,  be  regarded  between  thO|  parties 
as  contraband  ;  but  these  treaties  disagree  with  one 
another.  And,  so  far  as  they  are  not  bound  by  a  treaty, 
belligerents  exercise  their  discretion  in  every  war, 
according  to  the  special  circumstances  and  conditions, 
in  regarding,  or  not  regarding,  certain  articles  of  ancipi- 
tous use  as  contraband.  The  endeavour  of  the  First 
and  the  Second  Armed  Neutralities  of  1780  and  1800 
to  restrict  the  number  and  kinds  of  articles  that  could 
be  regarded  as  contraband  failed  ;  and  the  Declara- 
tion of  Paris  of  1856  uses  the  term  contraband  without 
attempting  to  define  it.  By  Articles  22-29  of  the 
Declaration  of  London  of  1909  the  Powers  seemed  to 
have  come  to  an  agreement  concerning  what  articles 
are,  and  what  are  not,  contraband  ;  but  the  declara- 
tion remained  unratified,  and  the  World  War  has  shown 
that  it  is  impossible  once  and  for  all  to  settle  the  ques- 

commeatus,  naves,  et  quae  na^abus        belli  status.   ..." 

adsunt.   ...   In    tertio    illo    genere 

usua    anoipitis,    distinguendus    erit  '  Qiiaeationes  Juris  publici,  i.  c.  x. 


548  CONTRABAND 

tion  what  articles  are  to  be  considered  as  contraband. 

Furthermore,   the  interests  of  the  States  when  they 

are  belligerents  are  opposed  to  their  interests  when 

they  are  neutrals ;   and  for  this  reason  all  States  when 

belhgerents  take  up  a  different  attitude  with  regard 

to  contraband  from  that  which  they  take  up  when 

neutrals. 

Absolute       §  392.  Apart  from  the  distinction  between  articles 

ditiona"    which  Can  be  made  use  of  only  in  war  and  those  of 

Contra-     aucipitous    usc,   two  different   classes    of    contraband 

band,  and  ^  ,...,, 

Free  must  be  distmguishcd. 
rtic  es.  There  are,  in  the  first  place,  articles  which  by  their 
very  character  are  destined  to  be  used  in  war.  In  this 
class  are  to  be  reckoned,  not  only  arms  and  anamuni- 
tion,  but  also  such  articles  of  ancipitous  use  as  mihtary 
stores,  naval  stores,  and  the  hke.  These  are  termed 
absolute  contraband.  There  are,  secondly,  articles 
which,  by  their  very  character,  are  not  necessarily 
destined  to  be  used  in  war,  but  which,  under  certain 
circumstances  and  conditions,  can  be  of  the  greatest 
use  to  a  belhgerent  for  the  continuation  of  the  war. 
To  this  class  belong,  for  instance,  provisions,  coal,  gold, 
and  silver.  These  articles  are  termed  conditional  or 
relative  contraband. 

Although  hitherto  not  all  the  States  have  made  this 
distinction,  which  is  important  not  only  in  determin- 
ing whether  or  not  a  particular  article  is  contraband, 
but  also  in  determining  the  consequences  of  carrying 
contraband,!  nevertheless  they  did  make  a  distinction 
in  so  far  as  they  varied  the  list  of  articles  which  they 
declared  contraband  in  their  different  wars.  Certain 
articles,  as  arms  and  ammunition,  have  always  been 
on  the  Hst,  whilst  other  articles  were  only  considered 
contraband  when  the  circumstances  of  a  particular 
war  made  it  necessary.    The  majority  of  writers  have 

^  See  below,  §  405. 


CONCEPTION   OF  CONTRABAND  549 

always  approved  of  the  distinction  between  absolute 
and  conditional  contraband,  although  several  insisted 
that  arms  and  ammunition  only  and  exclusively  could 
be  recognised  as  contraband,  and  that  conditional 
contraband  did  not  exist.^  The  unratified  Declara- 
tion of  London  adopted  ^  the  distinction,  but  added  a 
third  class.^  To  this  class  were  assigned  all  articles 
which  were  either  not  susceptible  of  use  in  war,  or 
the  possibihty  of  the  use  of  which  in  war  was  so 
remote  as  practically  to  make  them  not  susceptible  of 
use  in  war.     These  articles  were  termed  free  articles.'^ 

But  although  till  the  outbreak  of  the  World  War  the 
distinction  between  absolute  and  conditional  contra- 
band was  certainly  correct  in  theory,  and  of  value  in 
practice,  the  war  has  shaken  its  foundation.  It  dates 
from  the  time  when  armies  were  small,  and  comprised 
only  a  very  small  fraction  of  the  population  of  the 
belUgerent  countries.  But  during  the  World  War, 
when,  as  has  already  been  explained,^  every  fit  male  in 
each  belHgerent  State  became  by  choice  or  compulsion 
a  member  of  the  mihtary  forces,  when  the  whole  country 
with  all  its  resources  was  gradually  mobihsed,  and  the 
means  of  communication  werenationahsed  and  developed 
to  an  unprecedented  and  unforeseen  degree,  many 
declared  that  the  distinction  between  absolute  and 
conditional  contraband  was  out  of  date,  because  a 
belhgerent  Government  could  at  any  moment,  and 
would  if  necessary,  lay  its  hand  on,  and  requisition,  all 
articles  in  the  country  which  were,  or  might  be,  of  use 
for  carrying  on  the  war. 

§  393.  That  absolute  contraband  camiot,  and  need 
not,  be  restricted  to  arms  and  ammunition  only  and 

^  See,  for  instance,  Hautefeuille,  *  But  there  are  a  number  of  other 

ii.  p.  157,  and  Kleen,  i.  §  90.  free  articles,  although  they  do  not 

.   .   ..  ,      r,r>   r..  beloHg  to  the  articles  characterised 

-  Articles  23,  24.  ^^^^.^».  ^^^  ^^j^^^  g  396„ 

»  Article  27.  ^  Above,  §  57a. 


550  CONTRABAND 

Articles  exclusivelj  becomes  obvious,  if  it  be  remembered  that 
uteiy  other  articles,  although  of  ancipitous  use,  can  be  as 
£0!!^''  valuable  and  essential  to  a  belhgerent  for  the  continu- 
ance of  the  war.  The  necessary  machinery  and  material 
for  the  manufacture  of  arms  and  ammunition  are  almost 
as  valuable  as  the  latter  themselves,  and  warfare  on 
sea  can  as  httle  be  waged  without  vessels  and  articles 
of  naval  equipment  as  without  arms  and  ammunition. 
But  no  unanimity  exists  with  regard  to  such  articles  of 
ancipitous  use  as  are  to  be  considered  as  absolute  con- 
traband, and  States,  when  they  go  to  war,  increase  or 
restrict,  according  to  the  circumstances  of  the  particular 
war,  the  hst  of  articles  they  consider  absolute  contra- 
band. 

But  although  belligerents  must  be  free  to  take  into 
consideration  the  circumstances  of  the  particular  war, 
as  long  as  the  distinction  between  absolute  and  con- 
ditional contraband  is  upheld,  it  ought  not  to  be  left 
altogether  to  their  discretion  to  declare  any  articles 
they  Hke  to  be  absolute  contraband.  The  test  to  be 
apphed  is  whether,  under  the  special  circumstances  of 
a  particular  war,  or  considering  the  development  of 
the  means  used  in  making  war,  the  article  concerned 
is  by  its  character  destined  to  be  made  use  of  for  mihtary, 
naval,  or  air-fleet  purposes,  because  it  is  indispensable 
to  those  purposes.  If  not,  it  ought  not  to  be  declared 
absolute  contraband.  However,  it  may  well  happen 
that  an  article  which  is  not  by  its  very  nature  destined 
to  be  made  use  of  in  war,  acquires  this  character  in  a 
particular  war  and  under  particular  circumstances ; 
and  in  such  case  it  may  be  declared  absolute  contra- 
band. Thus,  for  instance,  foodstuffs  cannot,  as  a 
rule,  be  declared  absolute  contraband ;  but  if  the 
enemy,  for  the  purpose  of  securing  sufiicient  for  his 
military  forces,  takes  possession  of  all  the  foodstuffs  in 
the  country,  and  puts  the  whole  population  on  rations, 


CONCEPTION   OF  CONTRABAND  551 

> 

foodstuffs  acquire  the  character  essential  to  articles  of 
absolute  contraband,  and  can  therefore  be  declared  to 
be  such.  Or,  to  give  another  example,  cotton  was  not 
in  former  wars  considered  to  be  absolute  contraband, 
because  its  use  for  military  purposes  was  of  minor 
importance  ;  but  nowadays  the  importance  of  cotton 
for  the  manufacture  of  high  explosives  has  become  so 
apparent,  that  during  the  World  War  the  AlHes  had, 
in  1915,  to  declare  it  absolute  contraband.  But,  as 
has  been  said,  the  distinction  between  absolute  and 
conditional  contraband  threatens  to  disappear. 

Articles  22  and  23  of  the  Declaration  of  London  distin- 
guished two  classes  of  absolute  contraband.  Article  22 
enumerated  eleven  groups  of  articles  which  might  always, 
without  special  declaration  and  notice,  be  treated  as  absolute 
contraband.  Article  23  comprised  articles  exclusively  used 
for  war  which  were  not  enumerated  amongst  the  eleven 
groups  of  the  first  class,  but  might  also  be  treated  as  absolute 
contraband  ajter  special  declaration  and  notification.  Such 
a  declaration  might  be  published  during  time  of  peace,  and 
notification  thereof  had  then  to  be  addressed  to  all  other 
Powers  ;  but  if  the  declaration  was  pubhshed  after  the  out- 
break of  hostihties,  a  notification  had  only  to  be  addressed 
to  the  neutral  Powers.  Should  a  Power — see  Article  26 
— waive  the  right  to  treat  as  absolute  contraband  any 
article  comprised  in  the  first  class,  notification  thereof  had 
to  be  made  to  the  other  Powers. 

The  Ust  of  articles  in  the  first  class  embodied  a  compro- 
mise, for  it  included  several  articles — such  as  saddle,  draught, 
and  pack  animals  suitable  for  use  in  war — which  Great 
Britain  and  other  Powers  formerly  only  considered  as 
conditional  contraband. 

However,  the  Declaration  of  London  remained  un- 
ratified, and  although  at  the  outbreak  of  the  World 
War  Great  Britain  and  her  alhes  adopted  most  of  its 
rules,^  they  rejected  the  hst  of  absolute  contraband 

1  See  above,  §  292. 


552 


CONTRABAND 


wliich  it  contained.  During  the  war,  they  so  increased 
the  number  of  articles  of  absolute  contraband  by  suc- 
cessive orders  that  the  final  British  hst,  dated  July  2, 
1917,  covered  two  pages  of  the  London  Gazette} 

Among  them,  for  example,  were  :  aircraft,  alcohols, 
ammonia,  animals  suitable  for  use  in  war,  armour 
plates,  arms  and  ammunition,  arsenic,  asbestos,  barbed 
wire,  bones,  borax,  camp  equipment,  carbohc  acid, 
caustic  potash,  celluloid,  clothing  and  equipment 
(mihtary),  copper,  cork,  cotton  and  cotton  goods, 
diamonds  suitable  for  industrial  purposes,  electrical 
appHances  adapted  for  use  in  war,  explosives  specially 
prepared  for  use  in  war  and  materials  used  in  their 
manufacture,  field  forges,  flax,  gases  for  war  purposes, 
glycerine,  gold,  silver,  paper  money  and  securities  for 
money,  hair,  harness  (mihtary),  hemp,  hides,  imple- 
ments designed  exclusively  for  the  manufacture  of 
war  material,  iron,  lead,  leather,  lubricants,  mercury, 
mineral  oils,  motor  vehicles,  photographic  films,  platinum, 
range-finders,  rubber,  searchhghts,  silk,  soap,  sodium, 
starch,  steel  containing  tungsten  or  molybdenum, 
sulphuric  acid,  tanning  substances,  tar,  tin,  turpen- 
tine, tyres,  wagons  (mihtary),  warships  and  their  com- 
ponent parts,  waxes,  woods  capable  of  use  in  war, 
zinc.  The  hst  also  contained  a  large  number  of  other 
rare  metals,  chemicals,  and  other  commodities. 
Articles  §  394.  There  are  many  articles  which  are  not  by 
aSy^Con"  ^^^^^  character  destined  to  be  made  use  of  in  war,  but 
traband.  which  are  nevertheless  of  great  value  to  belhgerents  for 
the  continuance  of  war.  Such  articles  are  conditionally 
contraband,  which  means  that  they  are  contraband 
when  it  is  clearly  apparent,  ^  having  regard  to  the 
destination  of  the  vessel  carrying  them,  or  to  their 
consignee,  that  they  are  intended  to  be  used  for  mihtary 
or  naval  purposes.     But  neither  the  practice  of  the 

1  July  3,  1917.  *  See  below,  §  395. 


CONCEPTION   OF  CONTRABAND  .  553 

several  States  nor  the  opinion  of  writers  agree  upon 
the  matter,  and  it  is  in  particular  controversial  ^  whether 
or  no  foodstuffs,  horses  and  other  beasts  of  burden,  coal 
and  other  fuel,  money  and  the  like,  and  cotton,  may 
conditionally  be  declared  contraband. 

(1)  Thsit  foodstuffs  should  not  under  ordinary  circum- 
stances be  declared  contraband,  there  ought  to  be  no 
doubt.  There  are  even  several  writers  ^  who  em- 
phatically deny  that  they  could  ever  be  conditional 
contraband.  But  the  majority  of  writers  have  always 
admitted  that  foodstuffs  destined  for  the  use  of  the 
enemy  army  or  navy  might  be  declared  contraband. 
This  has  been  the  practice  of  Great  Britain,^  the  United 
States  of  America,  and  Japan.  But  in  1885,  during 
her  hostihties  against  China,  France  declared  rice  to 
be  absolute  contraband,  on  the  gromid  of  the  import- 
ance of  this  article  to  the  Chinese  population.  Again, 
Russia  in  1904,  during  the  Russo-Japanese  War,  de- 
clared rice  and  provisions  to  be  absolute  contraband  ; 
on  the  protest  of  Great  Britain  and  the  United  States 
of  America,  however,  she  altered  her  decision,  and 
treated  these  articles  as  conditional  contraband  only.* 
Article  24  of  the  unratified  Declaration  of  London 
declared  foodstuffs  to  be  conditional  contraband,  and 
they  appeared  as  conditional  contraband  in  the  British  ^ 
and  German  ^  contraband  hsts  diuring  the  World  War. 

(2)  The  importance  of  horses  and  other  beasts  of  burden 
for  cavalry,  artillery,  and  mihtary  transport  explains 
their  frequently  being  declared  as  contraband  by  beUi- 

^  See  Perels,   §  45,  and  Hall,   §§  between    absolute    and    conditional 

242-246,  who  give  bird's-eye  views  of  contraband, 

the  controversy.  *  London   Gazette,    July  3,    1917. 

'^  See,    for    instance,     Bluntschli,  The  British  list  referred  to  in  these 

§  807.  sections  is  the  final   list  issued    on 

»  The  Jonge  Margaretha,  (1799)  1  July  2,  1917. 

C.  Rob.  189.  «  London  Gazette,  August  7,  1917. 

*  See  the  cases  of  The  Arabia  and  The  German  list  referred  to  in  these 

The  Calchas  (TiMrst,  i.  pp.  52,  143),  sections  is  that  promulgated  by  ordin- 

in  which  the  Russian  Supreme  Prize  ance  on  June  25,   1917.     There  had 

Court    recognised     the    distinction  been  many  earlier  lists. 


554  CONTRABAND 

gerents.  No  argument  against  their  character  as  con- 
ditional contraband  can  have  any  basis.  But  they 
were  frequently  declared  absolute  contraband,  as,  for 
instance,  by  Article  36  of  the  United  States  Naval 
War  Code  of  1900.  Russia,  which  during  the  Russo- 
Japanese  War  altered  the  standpoint  at  first  taken  up 
by  her,  and  recognised  the  distinction  between  absolute 
and  conditional  contraband,  nevertheless  adhered  to  her 
declaration  of  horses  and  beasts  of  burden  as  absolute 
contraband.  The  unratified  Declaration  of  London, 
by  Article  22,  also  declared  them  to  be  absolute  contra- 
band, and  they  so  figured  in  the  British  and  German 
contraband  Hsts  during  the  World  War. 

(3)  Since  men-of-war  are  nowadays  propelled  by 
steam  power,  the  importance  of  coal,  and  other  fuel 
for  waging  war  at  sea,  is  ob\4ous.  For  this  reason 
Great  Britain  has,  ever  since  1854,  maintained  that 
coal,  if  destined  for  belhgerent  men-of-war  or  belh- 
gerent  naval  ports,  is  contraband.  But  in  1859  France 
and  Italy  did  not  take  up  the  same  standpoint.  Russia, 
although  in  1885  she  declared  that  she  would  never 
consent  to  coal  being  regarded  as  contraband,  in  1904 
declared  coal,  naphtha,  alcohol,  and  every  other  kind 
of  fuel,  to  be  absolute  contraband.  And  she  adhered 
to  this  standpoint,  although  she  w^as  made  to  recog- 
nise the  distinction  between  absolute  and  conditional 
contraband.  Article  24  of  the  unratified  Declaration 
of  London  declared  fuel,  and  therefore  coal,  to  be 
conditional  contraband,  and  during  the  World  War 
Great  Britain  so  treated  all  fuel,  except  mineral  oils, 
which  were  declared  absolute  contraband  in  view  of 
their  absolute  necessity  for  use  in  motors,  aeroplanes, 
and  submarines.  Germany  declared  coal,  coke,  and 
mineral  oils  to  be  absolute  contraband,  and  other  fuel 
to  be  conditional  contraband. 

(4)  As   regards   money,   imwrought   precious   metals 


CONCEPTION   OF  CONTRABAND  ,555 

which  may  be  coined  into  money,  bonds,  and  the  hke, 
the  mere  fact  that  a  neutral  is  prohibited  by  his  duty 
of  impartiahty  from  granting  a  loan  to  a  beUigerent 
ought  to  bring  conviction  that  these  articles  are  cer- 
tainly contraband  if  destined  for  the  enemy  State  or 
its  forces.  However,  these  articles  are  seldom  brought 
by  neutral  vessels  to  belhgerent  ports,  since  under 
the  modern  conditions  of  trade  beUigerents  can  be 
supphed  in  other  ways  with  the  necessary  funds.  Be 
that  as  it  may,  in  1916,  during  the  World  War,  the 
Allies,  who  at  the  beginning  of  the  war  had  declared 
gold,  silver,  and  paper  money  to  be  conditional  contra- 
band, proclaimed  that  they  would  thenceforth  treat 
gold,  silver,  paper  money,  all  negotiable  instruments, 
and  the  hke  as  absolute  contraband.  These  articles 
figured  as  absolute  contraband  in  the  German  hst. 

(5)  As  regards  raw  cotton,  it  is  asserted  ^  that  in 
1861,  during  the  Civil  War,  the  United  States  declared 
it  absolute  contraband  under  quite  pecuhar  circum- 
stances, since  it  took  the  place  of  money  sent  abroad 
for  the  purpose  of  paying  for  vessels,  arms,  and  amnnmi- 
tion.  But  this  assertion  is  erroneous.^  Be  that  as  it 
may,  raw  cotton  could  not,  prior  to  the  World 
War,  properly  be  considered  absolute  contraband. 
For  this  reason  Great  Britain  protested  when  Russia, 
in  1904  during  the  Russo-Japanese  War,  declared  raw 
cotton  to  be  absolute  contraband  ;  but  although  Russia 
at  first  seemed  incHned  to  give  way  ^  to  this  protest, 
she  finally  adhered  to  her  original  attitude.  Article 
28  of  the  unratified  Declaration  of  London  put  raw 
cotton  on  the  free  hst,  and  during  the  World  War 

1  See  Hall,  §  246  ;  Taylor,  §  662 ;  »  See  the  decision  of  the  Supreme 

Wharton,  iii.  §  373.          "  Prize  Court  in  the  ease  of  The  Calchas 

(May  7,  1905,  see  Hurst,  i.  p.  143) ; 

'^  See    Moore,    vii.    §    1254,    and  whereas  in  the  case  of  The  St.  Kilda 

Holland,  Letters  to  the  '  Times'  upon  (Dec.  11,  1908,  see  Hurst,  i.  p.  202) 

War  anrl  Neutrality  {1909),  ipip.  108-  this   same   court  decided   that  raw 

112.  cotton  was  absolute  contraband. 


556  CONTRABAND 

the  Allies  at  first  did  not  declare  it  contraband.  But 
in  time  its  importance  for  the  manufactm-e  of  high 
explosives  became  so  apparent  that  they  declared  to 
be  absolute  contraband  :  '  raw  cotton,  hnters,  cotton 
waste,  cotton  yarns,  cotton  piece-goods,  and  other 
cotton  products  capable  of  being  used  in  the  manu- 
facture of  explosives/  ^  Cotton  also  figured  as  absolute 
contraband  in  the  German  hst. 


By  the  unratified  Declaration  of  London  two  classes 
of  conditional  contraband  were  distinguished. 

Article  24  enumerated  fourteen  groups  of  articles 
which  might  always,  without  special  declaration  and 
notice,  be  treated  as  conditional  contraband.  Article 
25  consisted  of  articles  which  were  not  enumerated,  either 
amongst  the  eleven  groups  of  absolute  contraband  con- 
tained in  Article  22,  or  amongst  the  fourteen  groups  of 
conditional  contraband  contained  in  Article  24,  but  were 
nevertheless  susceptible  of  use  in  war  as  well  as  for  pur- 
poses of  peace  ;  these  might  also  be  treated  as  conditional 
contraband,  but  only  after  special  declaration  and  notifica- 
tion. With  regard  to  this  declaration  and  notification, 
the  same  procedure  was  to  be  followed  as  in  the  case  of 
absolute  contraband, ^ 

But  the  Hst  contained  in  the  unratified  Declaration  of 
London  was  not  adopted  by  Great  Britain  during  the 
World  War.  While  at  first  only  sHght  alterations  were 
made  in  it,  it  was  varied  by  successive  orders,  and  the 
final  Hst  contained  in  the  proclamation  of  July  2, 
1917,  comprised  some  thirty-four  kinds  of  articles 
classed  as  conditional  contraband.^  Among  them 
were :  bladders,  boots  and  shoes  suitable  for  use 
in  war,  casks,  clothing  suitable  for  use  in  war,  docks, 
field-glasses,  foodstuffs,  forage,  fuel  (other  than  mineral 
oils,  which  were  absolute  contraband),  glue,  harness, 

*  See  Garner,  ii.  §  498.  '  London  Gazette,  July  3,  1917. 

*  See  above,  §  393. 


CONCEPTION   OF   CONTRABAND  557 

horse-shoes,  nautical  instruments,  certain  oils  and 
fats  together  with  oleaginous  seeds,  nuts  and  kernels, 
railway,  telegraph  and  telephone  materials,  vehicles 
available  for  use  in  war  (other  than  motors,  which 
were  absolute  contraband),  vessels  of  all  kinds  (other 
than  warships,  which  were  absolute  contraband). 

§  395.  Whatever  may  be  the  nature  of  articles,  they  Hostile 
are  never  contraband  unless  they  are  destined  ^  for  the  JJon*'°* 
use  of  a  belhgerent  in  war.  Arms  and  ammunition  essential 
destined  for  a  neutral  are  as  Httle  contraband  as  other  band, 
goods  with  the  same  destination.  Hostile  destination, 
which  is  essential  even  for  articles  which  are  ob\a- 
ously  used  in  war,  is  all  the  more  important  for  such 
articles  of  ancipitous  use  as  are  only  conditionally 
contraband.  Thus,  for  instance,  provisions  and  coal 
are  perfectly  innocent  and  not  at  all  contraband  if 
they  are  destined  for  use  by  a  neutral.  However, 
the  destination  of  the  articles  must  not  be  confounded 
with  the  destination  of  the  vessel  which  carries  them. 
For,  on  the  one  hand,  certain  articles  wdth  a  hostile 
destination  are  considered  contraband  although  the 
carr}nng  vessel  is  destined  for  a  neutral  port,  and,  on 
the  other  hand,  certain  articles,  although  they  are 
without  a  hostile  destination,  are  considered  contraband 
because  the  carrying  vessel  is  to  touch  at  an  intermediate 
enemy  port  and  is,  therefore,  destined  for  such  port, 
although  her  ultimate  destination  is  a  neutral  port. 

^  Goods  are  destined  for  the  use  regarded  as  delivery  and  the  goods 

of  a  belligerent  in  war,  not  only  when  are  treated  in  a  Prize  Court  as  enemy 

they  are  shipped  to  an  enemy  con-  property.     See  The  Louisiana,  (1918) 

signee,    but    also    when    they    are  3  B.  and  C.  P.  C.  60,  and  distinguish 

shipped,  after  the  outbreak  of  war.  The  Kronjyrinzessin   Victoria,   (1918) 

by  a  neutral  consignor  to  a  neutral  3  B.  and  C.  P.  C.  247.     See  also  The 

consignee   with   the    intention   that  Rijn,  (1917)2  B.  and  C.  P.  C.  507; 

they  should  ultimately  become  the  The   Hellig  Olav,  (1918)   3   B.    and 

property  of  the  enemy.      The  fact  C.  P.  C.  258;    The  Xoordam,  (1918) 

that  at  the  time  of  capture  the  legal  3  B.  and  C.  P.  C.  317 ;    The  Kron- 

property  in  the  goods  had  not  passed  prins   Gustaf,    (1919)   3   B.    and   C. 

from  the  consignor  does  not  matter,  P.   C.  432  ;    The    Uma,  [1920J  A.C. 

because    in    such    case    capture    is  899. 


558  CONTRABAND 

The  unratified  Declaration  of  London,  in  Articles 
30  to  36,  comprised  very  detailed  rules  \\ath  regard  to 
hostile  destination,  distinguishing  clearly  between  the 
characteristics  of  hostile  destination  in  the  case  of 
absolute  contraband  and  of  conditional  contraband. 

(1)  The  destination  of  articles  of  absolute  contra- 
band was,  according  to  Article  30,  to  be  considered 
hostile  if  it  were  shown  that  they  were  being  sent 
either  to  enemy  territory,  or  to  territory  occupied  by 
the  enemy,  or  to  the  armed  forces  of  the  enemy  ;  and, 
according  to  Article  31,  hostile  destination  of  absolute 
contraband  was  to  be  considered  as  completely  proved, 
(i)  when  the  goods  were  consigned  to  an  enemy  port 
or  to  the  armed  forces  of  the  enemy,  (ii)  when  the 
vessel  was  to  call  at  enemy  ports  only,  or  was  to  touch 
at  an  enemy  port,  or  meet  the  armed  forces  of  the 
enemy,  before  reaching  the  neutral  port  to  which 
the  cargo  concerned  was  consigned. 

(2)  The  destination  of  articles  of  conditional  contra- 
band, on  the  other  hand,  was,  according  to  Article  33, 
considered  to  be  hostile  if  they  were  intended  for  the 
use  of  the  armed  forces,  or  of  a  government  depart- 
ment, of  the  enemy  State,  unless  in  this  latter  case 
the  circumstances  showed  that  the  articles  could  not 
in  fact  be  used  for  warhke  purposes.^  Gold  and  silver 
in  coin  or  bulhon  and  paper  money  were,  however,  in 
every  case  to  be  regarded  as  having  a  hostile  destination 
if  intended  for  a  government  department  of  the  enemy 
State.  According  to  Article  34,  hostile  destination 
of  conditional  contraband  was  to  be  presumed,  unless 
the  contrary  was  proved,  when  the  articles  were  con- 
signed, (i)  to  enemy  authorities,  or  to  an  enemy  con- 
tractor estabhshed  in  the  enemy  country  who  as  a 

*  See  TAe  Con«<an<moa,  (1916)  2  B.  certain  conditional  contraband  con- 
andC.  P.  C.  140,  where  the  Egyptian  signed  to  Smyrna  had  established 
Prize  Court  held  that  the  owner  of       that  it  was  for  private  consumption. 


CONCEPTION   OF   CONTRABAND  559 

matter  of  common  knowledge  supplied  articles  of  this 
kind  to  the  enemy,  or,  (ii)  to  a  fortified  place  of  the 
enemy  or  to  another  place  serving  as  a  base — whether 
of  operations  or  supply — for  the  armed  forces  of  the 
enemy.^  On  the  other  hand,  if  the  articles  were  not 
so  consigned  and  if  the  contrary  was  not  proved,  their 
destination  was  presumed  to  be  non-hostile.  In  the 
case  of  a  merchantman  which  could  herself  be  condi- 
tional contraband  ^  if  bound  to  a  fortified  place  of  the 
enemy,  or  to  another  place  serving  as  a  base  for  the 
armed  forces  of  the  enemy,  there  was  to  be  no  pre- 
sumption of  a  hostile  destination,  but  a  direct  proof 
was  to  be  necessary  that  she  was  destined  for  the  use 
of  the  armed  forces,  or  of  a  government  department, 
of  the  enemy  State. 

At  the  outbreak  of  the  World  War,  Great  Britain, 
in  concert  with  her  Allies,  by  the  Order  in  Council  of 
August  20,  1914,^  adopted  (among  other  articles) 
Articles  30,  31,  33,  and  34  of  the  unratified  Declara- 
tion of  London  without  modification  except  that  to 
the  presumptions  laid  down  in  Article  34  with  regard 
to  the  destination  of  conditional  contraband  was 
added  a  new  presumption.  This  Order  in  Council 
was  replaced  by  a  new  order  of  October  29,  1914,  which 
again  adopted  these  articles  of  the  declaration,  with 
an  additional  presumption  that  if  goods  which  were 

^  During  the  World  War — see  the  and  text  of  the  decision  in  Z.  V.,  ix. 
British  Note  of  February  19,  1915,  (1916),  p.  408,  and  in  J./.,  x.  (1916), 
to  the  United  States  in  A.J.,  ix.  p.  927.  Again — see  the  German  Note 
(1915),  Supplement,  p.  176 — Germany  to  the  United  States  of  April  5,  1915, 
claimed  to  treat  practically  every  in  A.J.,  ix.  (1915),  Special  Supple- 
town  or  port  on  the  English  East  ment,  p.  181 — Germany  justified  the 
Coast  as  a  fortified  place  and  base  sinking  of  the  American  vessel 
of  operations.  Moreover,  one  of  William  P.  Frye  carrying  a  cargo 
her  cruisers  sank  the  neutral  Dutch  of  wheat  to  Queenstown,  Falmouth, 
vessel  Maria  in  September  1914,  or  Plymouth  on  the  ground  that 
while  carrying  grain  (conditional  these  ports  were  '  strongly  fortified 
contraband)  from  California  to  English  coast  places,  which,  more- 
Dublin  and  Belfast,  on  the  ground  over,  serve  as  bases  for  the  British 
that  Dublin  and  Belfast  served  as  naval  forces.' 
bases  for  the  armed  forces  of  Great  -  See  below,  §  397. 
Britain.     See  Gamer,  ii.  §§  486,  508,  »  See  above,  §  292. 


560  CONTRABAND 

conditional  contraband  were  consigned  '  to  or  for  an 
agent  of  the  enemy  State/  they  had  the  hostile  desti- 
nation necessary  to  render  them  hable  to  capture. 
By  an  Order  in  Comicil  dated  March  30,  1916,  it  was 
further  provided  that  tliis  additional  presumption 
should  apply  also  to  absolute  contraband,  and  that 
both  absolute  and  conditional  contraband  should  be 
presumed  to  have  the  hostile  destination  necessary 
to  render  it  hable  to  capture,  if  consigned  '  to  or  for  a 
person  who  during  the  present  hostihties  has  forwarded 
imported  contraband  goods  to  territory  belonging  to 
or  occupied  by  the  enemy.'  The  burden  of  proving 
that  goods  which  came  within  these  provisions  of  this 
order  had  an  innocent  destination  was  placed  upon 
the  owner.  However,  by  the  Maritime  Rights  Order 
in  Council  of  July  7,  1916,  the  Declaration  of  London 
was  abandoned,  and  it  was  provided  that  '  the  hostile 
destination  required  for  the  condemnation  of  con- 
traband articles  shall  be  presumed  to  exist,  until  the 
contrary  is  shown,  if  the  goods  are  consigned  to  or  for 
an  enemy  authority,  or  an  agent  of  the  enemy  State, 
or  to  or  for  a  person  in  territory  belonging  to  or  occupied 
by  the  enemy,  or  to  or  for  a  person  who  during  the 
present  hostihties  has  forwarded  contraband  goods  to 
an  enemy  authority,  or  an  agent  of  the  enemy  State, 
or  to  or  for  a  person  in  territory  belonging  to  or  occupied 
by  the  enemy,  or  if  the  goods  are  consigned  "  to  order," 
or  if  the  ship's  papers  do  not  show  who  is  the  real 
consignee  of  the  goods.' 
Free  §  396.  It  is  obvious  that  such  articles  as  are  not 

susceptible  of  use  in  war  may  never  be  declared  con- 
traband, whether  their  destination  be  hostile  or  not. 

The  unratified  Declaration  of  London,  by  Article  27, 
expressly  recognised  this,  and  in  Article  28 — in  a  so- 
called  free  list — enumerated  seventeen  groups  of  articles 
which  might  never  be  declared  contraband  in  spite  of 


Articles. 


CONCEPTION   OF   CONTRABAND  561 

their  hostile  destination.  This  free  list  wa ;,  how- 
ever, not  adopted  by  the  Allies  during  the  Wor  d  War ; 
several  articles  enumerated  therein  were  declaied  con- 
traband, and  thereby  the  free  list  obviously  lost  all 
value.  In  the  future,  as  in  the  past,  it  will  remain 
for  the  belhgerents  to  consider  whether  or  no  they 
will  treat  an  article  as  free,  provided  that  they  do 
not  violate  the  general  principle  ^  that  only  such 
articles  may  be  declared  contraband  as  enable  the 
enemy  to  carry  on  the  war  with  greater  vigour. 

396a.  However,    there    are    two    groups    of    articles  Articles 

1-1         •ni  1  •       1  c  destined 

which  Will  always  be  recogmsed  as  tree.  for  the 

In  the  first  place,  those  articles  which  serve  exclu- g^®^°^.JJ^® 
sively  to  aid  the  sick  and  wounded  may  never  be  Vessel,  or 
treated   as   contraband    even   if   their   destination   is  wounded, 
hostile.     They  may,  however,  in  case  of  urgent  mihtary 
necessity,  and  subject  to  the  payment  of  compensa- 
tion, be  requisitioned,  if  they  are  destined  to  territory 
belonging  to,  or  occupied  by,   the  enemy,   or   to  his 
armed  forces.      The  unratified  Declaration  of  London 
laid  down  this  rule,  and  it  was  adopted  during  the 
World  War. 

Secondly,  articles  intended  for  the  use  of  the  vessel 
in  which  they  are  found,  or  for  the  use  of  her  crew  and 
passengers  during  the  voyage,  can  never  be  contra- 
band. Hostile  destination  being  essential  before  any 
kinds  of  articles  may  be  considered  contraband,  those 
articles  wliich  are  carried  by  a  vessel  manifestly  for 
her  own  use,  or  for  the  use  of  her  crew  and  passengers, 
must  be  free.^  Merchantmen  frequently  carry  a  gun 
and  a  certain  amount  of  ammunition  for  the  pm'pose 
of  signalHng,  and,  if  they  navigate  in  parts  of  the  sea 
where  there  is  danger  of  piracy,  they  frequently  carry 
a  certain  amount  of  arras  and  ammunition  for  defence 

^  See  above,  §  391.  Declaration    of    London    comprised 

^  Article    29    of     the     unratified       this  rule  likewise. 

VOL.  II.  2  N 


562  CONTRABAND 

against  an  attack  by  pirates.  It  will  not  be  difficult 
either  for  the  searching  belhgerent  man-of-war  or  for 
the  Prize  Court  to  ascertain  whether  or  no  such  arms 
and  ammunition  are  carried  bona  fide. 
Contra-  §  397.  A  ncutral  vessel,  whether  carrying  contra- 
Vesseis.  band  or  not,  can  herself  be  contraband.  Such  is  the 
case  when  she  has  been  built  or  fitted  out  for  use  in 
war  and.  is  on  her  way  to  the  enemy.  Although  it 
is  the  duty  of  neutrals  ^  to  employ  the  means  at  their 
disposal  to  prevent  the  fitting  out,  arming,  or  the 
departure  of  any  vessel  within  their  jurisdiction  which 
they  have  reason  to  believe  is  intended  to  cruise  or 
to  engage  in  hostile  operations  against  a  belligerent, 
their  duty  of  impartiahty  does  not  compel  them  to 
prevent  their  subjects  from  supplying  a  belhgerent 
with  vessels  fit  for  use  in  war  except  where  they  have 
been  built  or  fitted  out  by  his  order.  Subjects  of 
neutrals  may  therefore — unless  prevented  from  so 
doing  by  Municipal  Law,  as,  for  instance,  are  British 
subjects  by  §§  8  and  9  of  the  Foreign  Enhstment  Act, 
1870 — by  way  of  trade  supply  a  belhgerent  with  vessels 
of  any  kind,  provided  that  they  have  not  been  built 
or  fitted  out  by  his  order.  According  to  the  practice 
which  prevailed  prior  to  the  World  War,  such  vessels, 
being  equivalent  to  arms,  used  to  be  considered  as 
absolute  contraband ;  ^  and  they  need  not  necessarily 
have  been  fit  for  use  as  men-of-war ;  it  sufficed  that 
they  were  fit  to  be  used  for  the  transport  of  troops  and 
the  hke. 

According  to  Articles  22,  24,  and  34  of  the  unratified 
Declaration  of  London,  a  distinction  was  to  be  made 
between  warships  and  other  vessels.  Warships,  in- 
cluding their  boats,  and  distinctive  component  parts 

^  See  Article  8  of  Convention  XIII.,  325.  See  also  Twiss,  ii.  §  148,  and 
and  above,  §§  334,  350.  Holland,  Prize  Law,  §  86. 

*  The  Richmond,  (1804)  5  C.  Rob. 


CARRIAGE   OF  CONTRABAND  563 

which  by  their  nature  could  only  be  used  on  a  vessel  of 
war,  might  be  treated  as  absolute  contraband  without 
notice.  Vessels,  craft,  and  boats  of  all  kinds,  and, 
further,  floating  docks,  parts  of  docks  and  their  com- 
ponent parts,  might  only  be  treated  as  conditional 
contraband,  but  might  be  so  treated  without  notice. 

During   the   World   War   the  Alhes   adopted   these 
rules  of  the  Declaration  of  London.^ 


II 

CARRIAGE   OF   CONTRABAND 

See  the  literature  quoted  above  at  the  commencement  of  §  391. 

§  398,  The  guaranteed  freedom  of  commerce  making  carriage 
the  sale  of  articles  of  all  kinds  to  belhgerents  by  subjects  blnd"*^"^*" 
of  neutrals  legitimate,  articles  of  conditional  as  well  Penal  by 
as  absolute  contraband  may  be  supphed  by  sale  to  cipai  Law 
either  belhgerent  by  these  individuals.     Moreover,  the  ggrents. 
carriage  of  such  articles  by  neutral  merchantmen  on 
the  open  sea  is,  as  far  as  International  Law  is  concerned, 
quite  as  legitimate  as  their  sale.     The  carrier  of  con- 
traband by  no  means  ^  violates  an  injunction  of  the 
Law  of  Nations.     But  belhgerents  have,  by  the  Law 
of  Nations,  the  right  to  prohibit  and  punish  the  carriage 
of  contraband  by  neutral  merchantmen,  and  the  carrier 
of  contraband  violates,  for  this  reason,  an  inj  miction 
of  the  belhgerent  concerned.     It  is  not  International 
Law,  but  the  Mmiicipal  Law  of  the  belhgerents,  which 
makes  carriage  of  contraband  illegitimate  and  penal.^ 
The  question  why  the  carriage  of  contraband  articles 

1  See  above,  §§  393,  394.  is  to  be  regretted  that  Pyke,    The 

-  Most  wiiters,  especially  British  Laio  of  Contraband  (\Q\o),  pp.  89-95, 

and  American,  nowadays  agree  with  and  Butte  in  the  Proceedings  of  the 

this  statement,   although  there  are  American    Society    of   International 

still   some   left  who  assert   that    a  Laxi:,  ix.  (1915),  p.  125,  renew  this 

carrier    of    contraband    violates    an  assertion. 
injunction  of  International  Law.     It  '  See  above,  §  296. 


564  CONTRABAND 

may  be  prohibited  and  punished  by  the  belhgerents, 
although  it  is  quite  legitimate  so  far  as  International 
Law  is  concerned,  can  only  be  answered  by  reference 
to  the  historical  development  of  the  Law  of  Nations. 
In  contradistinction  to  former  practice,  which  inter- 
dicted all  trade  between  neutrals  and  the  enemy,  the 
principle  of  freedom  of  commerce  between  subjects 
of  neutrals  and  either  belhgerent  has  gradually  become 
universally  recognised ;  but  this  recognition  included 
from  the  beginning  the  right  of  either  belhgerent  to 
punish  carriage  of  contraband  on  the  sea.  And  the 
reason  obviously  is  the  necessity  for  belhgerents,  in 
the  interest  of  self-preservation,  to  prevent  the  import 
of  such  articles  as  may  strengthen  the  enemy,  and  to 
confiscate  the  contraband  cargo,  and,  in  certain  cases, 
the  vessel  also,  as  a  deterrent  to  other  vessels. 

The  present  condition  of  the  matter  of  carriage  of 
contraband  is  therefore  a  compromise.  In  the  interest 
of  the  generally  recognised  principle  of  freedom  of 
commerce  between  belligerents  and  subjects  of  neutrals. 
International  Law  does  not  require  neutrals  to  prevent 
their  subjects  from  carrying  contraband ;  ^  on  the 
other  hand,  International  Law  empowers  either  belh- 
gerent to  prohibit  and  punish  carriage  of  contraband 
just  as  it  empowers  either  belhgerent  to  prohibit  and 
punish  breach  of  blockade.^ 
Direct  §  399.  The  simplest  case  of   carriage  of   contraband 

ofcontra-  occurs  whcrc  a  vessel  is  engaged  in  carrying  to  an  enemy 
band.       pQj^  g^cJi  goods  as  are  contraband  and  have  a  hostile 
destination.^    In  such  cases,   it  makes  no  difference 

^  See  Ex  parte  Chanisae,  in  re  being  hostile,  it  does  not  matter  that 
Grazehrook,  (1865)  34  L.  J.  N.  S.,  the  cargo  is  intended  to  be  re- 
Bank.  17.  The  same  applies  to  shipped  to  a  neutral  country  after 
blockade-running  and  rendering  un-  having  undergone  a  certain  course 
neutral  service  :  see  The  Helen,  of  treatment.  The  hostile  destination 
(1865)  L.R.  1  A.  and  E.  1.  makes    it    contraband ;      The    Axel 

-  See  above,  §383.  Johnson,   (1917)  2  B.  and  C.   P.  C. 

*  The   destination   of    the    cargo  532. 


CARRIAGE   OF  CONTRABAND  565 

whether  the  fact  that  the  vessel  is  destined  for  an 
enemy  port  becomes  apparent  because  her  papers 
show  that  she  is  bound  to  such  a  port,  or  because  she 
is  found  at  sea  saihng  on  a  course  for  an  enemy  port, 
although  her  papers  show  her  to  be  bound  to  a  neutral 
port.  Further,  it  makes  no  difference,  according  to 
the  hitherto  prevaihng  practice  of  Great  Britain  and 
the  United  States  of  America  at  any  rate,  that  she  is 
ultimately  bound  for  a  neutral  port,  and  that  the 
articles  concerned  are,  according  to  her  papers,  destined 
for  a  neutral  port,  if  only  she  is  to  call  at  an  inter- 
mediate enemy  port,  or  if  she  is  to  meet  enemy  naval 
forces  at  sea  in  the  course  of  her  voyage  to  the  neutral 
port  of  destination  ;  ^  for  otherwise  the  door  would 
be  open  to  deceit,  and  it  would  alw^ays  be  pretended 
that  goods  which  a  vessel  was  really  carrying  to  the 
intermediate  enemy  places  were  intended  for  the 
neutral  port  of  ultimate  destination.  For  the  same 
reason,  a  vessel  carrying  such  articles  as  are  contra- 
band when  they  have  a  hostile  destination  is  considered 
to  be  carrying  contraband  if  her  papers  show  that 
her  destination  is  dependent  upon  contingencies  under 
which  she  may  have  to  call  at  an  enemy  port,  unless 
she  proves  that  she  has  abandoned  the  intention  of 
calhng  there  in  any  event.^ 

The  unratified  Declaration  of  London  distinguished 
between  carriage  of  absolute  and  of  conditional  contra- 
band : — 

As  regards  absolute  contraband,  a  vessel  was,  accord- 
ing to  Article  32,  considered  to  be  carrying  contra- 
band whether  the  fact  that  she  was  destined  for  an 
enemy  port  became  evident  because  her  papers  showed 
that  she  was  bound  for  such  a  port,  or  because  she  was 

^  See  Holland,  Prize  Law,  ^  69.  in  The  Lisette,  (1800)  6  C.  Rob.  390, 

*  TAe /niina,  (1800)3  0.  R<jb.  107;        n.      See   also   Holland,   Prize  Law 
and  The  Trende  ;So»tre,  (1800)  cited       §  70. 


566  CONTRABAND 

found  at  sea  sailing  for  an  enemy  port,  although  her 
papers  showed  her  to  be  bound  for  a  neutral  port. 
Moreover,  according  to  Article  31,  it  was  to  make  no 
difference  that  the  vessel  was  bound  for  a  neutral  port 
and  that  the  articles  concerned  were,  according  to  her 
papers,  destined  for  a  neutral  port,  if  only  she  was  to 
touch  at  an  intermediate  enemy  port,  or  was  to  meet 
armed  forces  of  the  enemy  before  reaching  the  neutral 
port  to  which  the  goods  in  question  were  consigned. 

As  regards  conditional  contraband,  a  vessel  was, 
according  to  Article  35,  to  be  considered  as  carrying 
contraband  if  her  papers  showed  her  to  be  destined  for 
an  enemy  port,  or,  if  being  clearly  found  out  of  her 
course  to  a  neutral  port  indicated  by  her  papers,  she 
was  unable  to  give  adequate  reasons  to  justify  such 
deviation. 

Articles  32  and  35  both  stipulated  that  ship-papers 
were  to  be  conclusive  proof  as  to  the  destination  of 
the  vessel  and  of  the  cargo,  unless  the  vessel  was  clearly 
found  out  of  the  course  indicated  by  them ;  but  the 
Report  of  the  Drafting  Committee  emphasised  that 
this  rule  must  not  be  interpreted  too  hterally,  since 
otherwise  fraud  would  be  made  easy.  Ship-papers  are 
conclusive  proof — so  ran  the  Report — unless  facts 
show  their  evidence  to  he  false. 

From  the  outbreak  of  the  World  War  until  July 
1916,  the  AlHes  adopted  Articles  32  and  35  as  regards 
direct  carriage  of  contraband,  though  they  modified 
Article  35  in  other  important  respects.^  By  the  Mari- 
time Rights  Order  in  Council  of  July  7,  1916,  they 
abandoned  the  rules  of  the  declaration  altogether. 
Circuitoua  §  ^^0.  A  morc  usual  case  of  carriage  of  contraband 
Carriage    occurs  whcu  a  ucutral  vessel  carrying  such  articles  as 

of  Contra- 

band.       are  contraband  if  they  have  a  hostile  destination  is, 
according  to  her  papers,  ostensibly  bound  for  a  neutral 

*  See  below,  §  403a, 


CARRIAGE   OF  CONTRABAND  567 

port,  but  is  intended,  after  having  called  there,  and 
perhaps  dehvered  her  cargo  there,  to  carry  it  on  (re- 
shipping  it  if  need  be)  from  there  to  an  enemy  port. 
There  is,  of  course,  no  doubt  that  such  vessels  are 
carrying  contraband  whilst  engaged  in  carrying  the 
articles  concerned  from  the  neutral  to  the  enemy  port. 
But,  during  the  American  Civil  War,  the  question  arose 
whether  they  may  already  be  considered  to  be  carrying 
contraband  when  they  are  on  their  way  from  the  port 
of  starting  to  the  neutral  port  from  wliich  they  are 
afterwards  to  carry  the  cargo  to  an  enemy  port,  since 
they  are  really  intended  to  carry  the  cargo  from  the 
port  of  starting  to  an  enemy  port,  although  not  directly, 
but  circuitously,  by  a  roundabout  way.  The  American 
Prize  Courts  answered  the  question  in  the  affirmative 
by  applying  to  the  carriage  of  contraband  the  prin- 
ciple of  dolus  non  furgatur  drcuitu,  and  the  so-called 
doctrine  of  continuous  voyages.^  This  attitude  of  the 
American  Prize  Courts  has  called  forth  protests  from 

'  The  so-called  doctrine   of   con-  a    week    for   the    Spanish    port    of 

tinuous  voj-ages  dates  from  the  time  Bilbao.       In    all    such    cases,    the 

of  the  Anglo-French  wars  at  the  end  British  Prize  Courts  considered  the 

of   the   eighteenth    centurj',   and   is  voyages   from  the  colonial   port  to 

connected    with   the    application   of  the  neutral  port  and  from  there  to 

the   so-called    rule    of    1756.       (See  tlie  enemj'  port  as  one  continuous 

above,  §  289. )     Neutral  vessels  en-  voyage,  and  confirmed  the  seizure  of 

gaged  in  French  and  Spanish  colonial  the  ships  concerned.      See  Reddie, 

trade,  which  had  been  thrown  open  Researches,  i.    pp.    307-313  ;    Remy, 

to  them  during  the  war,  sought  to  Thiorie  de  la  Continuautd  du  Voyage 

evade  seizure  bj'  British  cruisers  and  en  matiere  de  Blocua  et  de  Contrehande 

condemnation  by  British  Prize  Courts  (1902);    Hansemann,  Die  Lehre  von 

according  to  the  rule    of    1756,   by  der    einheitlichen    Beite    im     Rechte 

taking  their  cargo  to  a  neutral  port,  der  Blockade  und  Kriegsl'onterbande 

landing  it  and  paying  import  duties  (1910);  Fauchille  in  R.G.,  iv.  (1897), 

there,   and   then   re-loading   it   and  pp.  297-323  ;  Arias  and  Baldwin  in 

carrying  it  to  the   mother  country  A.J.,   ix.   (1915),   pp.  583-593,   793- 

of  the  respective  colony.       Thus  in  801.       The    American    courts    have 

The  William,  (1806)  5  C.  Rob.  385,  applied  the  doctrine  of  continuous 

it  was  proved  that  this  neutral  ves.«el  voyages    not    only    to    carriage    of 

took  a  cargo  from  the  Spanish  port  contraband    but   also   to   blockade  ; 

of  La  Guira  to  the  port  of  Marblehead  see  above,  §  385  (4),  where  the  cases 

in  Massachusetts— the  United  States  of    The   Bermuda  and    The  Stephen 

being  neutral— landed  the  cargo,  paid  Hart  are  quoted.     See  also  Judson 

import  duties  there,  then  re-shipped  in  the  Proceedings  of  the  American 

the  greater  part  of  it,  and,  in  ad-  Society    of   Intermttional    Laio,    ix. 

dition,  other  goods,  and  sailed  after  (1915),  pp.  104-111. 


568 


CONTRABAND 


Indirect 
Carriage 
of  Con- 
traband 
(Doctrine 
of  Con- 
tinuous 
Trans- 
ports). 


many  f  ithorities,^  British  as  well  as  foreign ;  but 
Great  E  itain  did  not  protest,  and  from  the  attitude 
of  the  British  Government  in  the  case  of  The  Bundesrath 
and  other  vessels  in  1900  during  the  South  African 
War,  it  was  possible  to  conclude,  although  only  by  in- 
ference, that  it  considered  the  practice  of  the  American 
Prize  Courts  to  be  correct  and  just,  and  that,  when  a 
belligerent,  it  intended  to  apply  the  same  principles.^ 
And  in  the  last  edition  of  this  treatise  I  stated  that, 
provided  that  the  intention  of  the  vessel  was  really 
to  carry  the  cargo  circuitously,  by  a  roundabout  way, 
to  an  enemy  port,  and  further,  provided  that  a  mere 
suspicion  was  not  held  to  be  proof  of  such  intention,  I 
could  not  see  why  this  apphcation  of  the  doctrine  of 
continuous  voyages  should  not  be  considered  reason- 
able, just,  and  adequate. 

§  401.  Before  turning  to  the  practice  during  the 
World  War,  it  will  be  convenient  to  consider  a  similar 
case  which  occurs  when  neutral  vessels  carry  to  neutral 
ports  such  articles  as  are  contraband  if  bound  for  a 
hostile  destination,  arrangements  having  been  made 
(of  which  the  vessel  may  or  may  not  be  aware)  for  the 
articles  to  be  brought  afterwards  by  land  or  sea  into 
the  hands  of  the  enemy.  Long  before  the  World 
War  the  question  had  arisen  whether  such  vessels 
while  on  their  voyage  to  the  neutral  port  might  be  con- 
sidered to  be  carrying  contraband  of  war.^    As  early 


^  See,  for  instance,  Hall,  §  247. 
But  Phillimore,  iii.  §  227,  p.  391, 
says  of  the  judgments  of  the  Supreme 
Court  of  the  United  States  in  the 
cases  of  The  Bermuda,  (1865)  .3  Wall. 
514,  and  The  Peterhoff,  (18HH)  5  Wall. 
49,  that  thej'  'contain  very  valuable 
and  sound  expositions  of  the  law, 
professedly,  and  for  the  most  part 
really,  in  harmonj^  with  the  earlier 
decisions  of  English  Prize  Courts.' 
On  the  other  hand,  Phillimore,  iii. 
§  398,   p.    490,    disagrees   mth    the 


American  courts  regarding  the  appli- 
cation of  the  doctrine  of  continuous 
voyages  to  breach  of  blockade,  and 
reprobates  the  decision  in  the  case 
of  The  Springhol;  (1866)  5  Wall.  1. 

"  See  also  Holland,  Manual  of 
Naval  Prize  Law,  §  71. 

^  The  question  is  treated  with 
special  regard  to  the  case  of  The 
Bundesrath,  in  two  able  articles  in 
the  Law  Quarterly  Review,  xvii. 
(1901).  See  also  Baty,  International 
Law  in  Souih  Africa  (1900),  pp.  1-44. 


CARRIAGE   OF  CONTRABAND  569 

as  1855,  during  the  Crimean  War,  the  French  Conseil- 
General  des  Prises,  in  condemning  the  cargo  of  salt- 
petre of  the  Hanoverian  neutral  vessel  Vrow  Houwina, 
answered  the  question  in  the  afhrmative  ;  ^  but  it  was 
not  until  the  American  Civil  War  that  the  question  was 
decided  on  principle.  Since  goods  first  brought  from 
more  distant  neutral  ports  were  shipped  from  the  British 
port  of  Nassau,  in  the  Bahamas,  and  from  other  neigh- 
bouring neutral  ports,  to  the  blockaded  coasts  of  the 
Southern  States  near  by,  Federal  cruisers  seized  several 
vessels  destined  for,  and  actually  on  their  voyage  to, 
Nassau  and  other  neutral  ports,  because  all  or  parts 
of  their  cargoes  were  ultimately  destined  for  the  enemy. 
The  American  courts  considered  those  vessels  to  be 
carrying  contraband,  although  they  were  saihng  from 
one  neutral  port  to  another,  on  clear  proof  that  the 
goods  concerned  were  destined  to  be  transported  by 
land  or  sea  from  the  neutral  port  of  landing  into  the 
enemy  territory.  The  leading  cases  are  those  of  The 
Springbok  and  The  Peterhoff,^  for  the  com'ts  found  the 
seizure  of  these  and  other  vessels  justified  on  the  groimd 
of  carriage  of  contraband  as  well  as  on  the  ground  of 
breach  of  blockade.  Thus  another  apphcation  of  the 
doctrine  of  continuous  voyages  came  into  existence, 
since  vessels,  whilst  saihng  between  two  neutral  ports, 
could  only  be  considered  to  be  carrying  contraband 
when  the  transport,  first  from  one  neutral  port  to 
another,    and    afterwards    from    the    second    neutral 

'  See  Calvo,  v.  §  2767,  p.  52.  The  States  of  America,  which  was  then 
case  of  the  Swedish  neutral  vessel  The  at  war  with  England.  When  the 
Commercen,  which  occurred  in  1814  case  came  before  Mr.  Justice  Story 
(1  Wheaton  382),  and  which  is  fre-  in  1816,  he  reprobated  the  argument 
quentlj'  quoted  with  that  of  The  that  the  seizure  was  not  justified 
Vroip  Houwina,  is  not  a  case  of  because  a  vessel  could  not  be  con- 
indirect  carriage  of  contraband.  sidered  to  be  carrying  contraband 
The  Commercen  was  on  her  way  to  when  on  her  way  to  a  neutral  port, 
Bilbao,  in  Spain,  carrying  a  cargo  of  and  he  asserted  that  the  hostile 
provisions  for  the  English  army  in  destination  of  goods  was  suflBcient 
Spain,  and  she  was  captured  by  a  to  justify  the  seizure  of  the  vessel, 
privateer  commissioned  by  the  United  -  Above,  §  385  (4). 


570  CONTRABAND 

port  to  the  enemy  territory,  was  regarded  as  one  con- 
tinuous voyage.     This  new  apphcation  of  the  doctrine 
of  continuous  voyages  is  fitly  termed  '  the  doctrine 
of  continuous  transports.' 
The  Case      s  402.  The  apphcation  of  the  doctrine  of  continuous 

of  The  ^  ^  p  . 

Bundti-  voyages  under  the  new  form  of  contmuous  transports 
^"'  ■  was  likewise  condemned  by  many  British  and  foreign 
authorities ;  but  Great  Britain  did  not  protest  in  this 
case  either — on  the  contrary,  as  was  mentioned  above,^ 
she  dechned  to  interfere  in  favour  of  the  British  owners 
of  the  vessels  and  cargoes  concerned.  And  that  she 
really  considered  the  practice  of  the  American  courts 
just  and  sound  became  clearly  apparent  from  her 
attitude  during  the  South  African  War.  When,  in 
1900,  the  Bundesrath,  Herzog,  and  General,  German 
vessels  saiHng  from  German  neutral  ports  to  the  Portu- 
guese neutral  port  of  Lorenzo  Marques  in  Delagoa 
Bay,  were  seized  by  British  cruisers  under  the  suspicion 
of  carrying  contraband,  Germany  demanded  their 
release,  maintaining  that  no  carriage  of  contraband 
could  be  said  to  take  place  by  vessels  saihng  from  one 
neutral  port  to  another.  But  Great  Britain  refused 
to  admit  this  principle,  maintaining  that  articles 
ultimately  destined  for  the  enemy  were  contraband, 
although  the  vessels  carrying  them  were  bound  for  a 
neutral  port.^ 

There  is  no  doubt  that  the  attitude  then  taken  up 
by  the  British  Government  was  contrary  to  the  opinion 
of  the  prominent  Enghsh  ^  writers  on  International 
Law.  Even  the  Manual  of  Naval  Prize  Law,  edited 
by  Professor  Holland  ■*  in  1888,  and  '  issued  by  authority 

^  §  885  (4).  under  the  title  Prize  Law  and  Con- 

^  See  Pari.  Papers,  Africa,  No.  1  tinuous  Voyage  (1915). 

(1900).  *  In    a    letter    to    The   Timet   of 

^  See,   for  instance,   Hall,  §  247,  January  2,  1900,  Professor  Holland 

and  T^viss  in  the  Law  Magazine  and  points  out  that  circumstances   had 

Review,  xii.  (1877),  pp.  130-158.    See  so  altered  since  1888  that  the  atti- 

also   the   papers  re-edited  by  Baty  tude  of  the  British  Government  in 


CARRIAGE   OF  CONTRABAND  571 

of  the  Lords  Commissioners  of  the  Admiralty/  repro- 
bated the  American  practice,  for  in  §  73  it  laid  down 
the  following  rule :  *  ...  If  the  destination  of  the 
vessel  be  neutral,  then  the  destination  of  the  goods 
on  board  should  be  considered  neutral,  notwithstand- 
ing it  may  appear  from  the  papers  or  otherwise  that 
the  goods  themselves  have  an  ulterior  hostile  destina- 
tion to  be  attained  by  transhipment,  overland  con- 
veyance, or  otherwise.'  And  the  practice  of  British 
Prize  Courts  in  the  past  would  seem  to  have  been 
in  accordance  with  this  rule.  In  1798,  during  war 
between  England  and  the  Netherlands,  the  neutral 
ship  Imina}  which  had  left  the  neutral  port  of  Dantzig 
for  Amsterdam  carrying  ship's  timber,  but,  on  hearing 
of  the  blockade  of  Amsterdam  by  the  British,  had 
changed  her  course  for  the  neutral  port  of  Emden, 
was  seized  on  her  voyage  to  Emden  by  a  British  cruiser  ; 
she  was,  however,  released  by  Sir  Wilham  Scott  because 
she  had  no  intention  of  breaking  blockade,  and  because 
a  vessel  could  only  be  considered  as  carrying  contra- 
band whilst  on  a  voyage  to  an  enemy  port.  '  The  rule 
respecting  contraband,  as  I  have  always  understood 
it,  is  that  the  articles  must  be  taken  in  delicto,  in  the 
actual  prosecution  of  the  voyage  to  an  enemy  port/ 
said  Sir  Wilham  Scott.^ 

§  403.  Although  the  majority  of  Continental  writers 
condemned    the    doctrine    of    continuous    transports, 


the  case  of  The  Bundesrath  was  quite  Westlake's    Introduction    in   Taka- 

justified  ;  see  Holland,  Letters  lo  the  hashi,  International  Law  during  the 

''Times'   upon   War  and  Neutrality  Chino- Japanese  Trar  (1899),  pp.  xx- 

(1909),  pp.  114-119.  xxiii,    and    in    the    Law    Quarterly 

>  3C.  Rob.  167.  Review,  xv.   (1899),   pp.  23-30  (now 

^  It    is    frequently   maintained —  reprinted  in  Westlake,  Papers,  pp. 

see  Phillimore,  iii.  §  227,  pp.   397-  4G1-474).    See  also  Hart,  ttt'd.,  xxiii. 

403  —  that    in    1864,    in    the    case  (1907),  p.  199,  who  discusses  the  case 

of    Hohhs    V.    Henning,    17    C.     B.  oi  Seymour  \.  London  and  Provincial 

(N,S.)  791,  Lord  Chief  Justice  Erie  Marine    Insurance    Co.,    (1872)    41 

repudiated    the    doctrine     of     con-  L.J.C.P.    193,  in    which   the   court 

tinuous    transports ;     but   Westlake  recognised  the    doctrine    of    contin- 

shows  that  this  is  not  the  case,     bee  uous  transports. 


572  CONTRABAND 

Conti-  several  eminent  Continental  authorities  supported  it. 
Support  Thus,  Gessner  ^  emphatically  asserted  that  the  destina- 
Doctrine  ^^^^  ^^  ^^®  Carrying  vessel  is  of  no  importance  com- 
ofCon-  pared  with  the  destination  of  the  goods.  Bluntschh, 
Trans"-^  although  he  condemned  ^  the  American  practice  regard- 
ports,  -j^g  breach  of  blockade  conunitted  by  a  vessel  sailing 
from  one  neutral  port  to  another,  expressly  approved  ^ 
the  American  practice  regarding  carriage  of  contraband 
by  a  vessel  saihng  between  two  neutral  ports,  yet 
carrying  goods  with  a  hostile  destination.  Kleen  ^  con- 
demned the  rule  that  the  neutral  destination  of  the 
vessel  made  the  goods  appear  likewise  neutral,  and 
defended  seizure  in  the  case  of  a  hostile  destination  of 
the  goods  on  a  vessel  saihng  between  two  neutral  ports ; 
he  expressly  stated  that  such  goods  are  contraband 
from  the  moment  the  carrying  vessel  leaves  the  port 
of  loading.  Fiore  ^  reprobated  the  theory  of  continu- 
ous voyages  as  apphed  by  British  and  American  courts, 
but  he  asserted  nevertheless  that  the  hostile  destination 
of  certain  goods  carried  by  a  vessel  saihng  to  a  neutral 
port  justifies  the  vessel  being  regarded  as  carr5dng  con- 
traband, and  the  seizure  thereof.  Bonfils  ^  took  up  the 
same  standpoint  as  Bluntschli,  admitting  the  apphcation 
of  the  theory  of  continuous  voyages  to  carriage  of  con- 
traband, but  reprobating  its  apphcation  to  breach  of 
blockade.'^  The  Institute  of  International  Law  adopted 
the  rule  :^  '  La  destination  four  Vennemi  est  presumes 
lorsque  le  transport  va  a  Vun  de  ses  ports,  ou  a  un 
port  neutre  qui,  d'apres  des  preuves  evidentes  et  de  fait 
incontestable,  n'est  quune  e'tape  pour  Vennemi,  comme  but 
final  de  la  meme  operation  commerciale.'  Thus  this 
representative  body  of  authorities  of  all  nations  fully 

1  p.  119.  *  No.  1569. 

-'  5,  835.  '  No.  1570. 

3  §  813.  "  See  §  1  of  the  '  R6glementation 

■•  i.  §  95,  p.  388.  Internationale  de  la  Contrebande  de 

'•'  iii.  No.  1649.  Guerre,' -4/wuaire,  xv.  (1896),  p.  230. 


CARRIAGE   OF  CONTRABAND  573 

adopted  the  American  application  of  the  doctrine  of 
continuous  voyages  to  contraband,  and  thereby  recog- 
nised the  possibihty  of  indirect  as  well  as  circuitous 
carriage  of  contraband. 

Moreover,  the  attitude  of  several  Continental  States 
was  in  favour  of  the  American  practice.  Thus,  accord- 
ing to  §§  4  and  6  of  the  Prussian  Regulations  of  1864 
regarding  Naval  Prizes,  it  was  the  hostile  destination 
of  the  goods,  or  the  destination  of  the  vessel  to  an 
enemy  port,  which  made  a  vessel  appear  as  carr3ang 
contraband  and  which  justified  her  seizure.  In  Sweden 
the  same  was  valid.^  Thus,  further,  an  Itahan  Prize 
Court  during  the  war  with  Abyssinia  in  1896  justified 
the  seizure  in  the  Red  Sea  of  the  Dutch  vessel  Doelwijk,^ 
which  had  sailed  for  the  neutral  French  port  of  Djibouti, 
carrying  a  cargo  of  arms  and  ammunition  destined 
for  the  Abyssinian  army  and  to  be  transported  to 
Abyssinia  after  having  been  landed  at  Djibouti. 

403a.  The  unratified  Declaration  of  London  offered  The  De- 
a  compromise  which,  if  it  had  been  accepted,  would  ofTondon 
have  settled   the  controversy  respecting   the  apphca-  poncern- 
tion  of   the  doctrine   of   continuous   voyages   to   the  Doctrine 
carriage  of  contraband,  whether  circuitous  or  indirect  tjnuous 
carriage  be  concerned.  L°d  th?' 

(1)  On   the  one  hand,   Article   30  recognised   with  Practice 
regard  to  absolute  contraband  the  apphcation  of  the  the'worid 
doctrine    of    continuous    voyages    both    to    circuitous  ^*^- 
and  indirect  carriage  of  contraband,  by  providing  that 
*  absolute  contraband  is  hable  to  capture  if  it  is  shown 
to  be  destined  to  territory  belonging  to  or  occupied 
by  the  enemy,  or  to  the  armed  forces  of  the  enemy. 
It  is  immaterial  whether  tJie  carriage  of  the  goods  is  direct 
or  entails  transhipment  or  a  subsequent  transport  by  land.' 

^  See  Kleen.  i.  p.  380.  n.  2.  Journal  de  Droit  international  Privff. 

-  See  Martens,  N.R.G.,  2nd  Ser.        (1897),  pp.  268-297.     See  also  below, 
xxviii.    pp.    66,    and    Diena  in   the       §  436. 


574  CONTRABAND 

(2)  On  the  other  hand,  Article  35  rejected  the  doc- 
trine of  continuous  voyages  with  regard  to  conditional 
contraband  by  providing  that  '  conditional  contra- 
band is  not  Hable  to  capture  except  when  found  on 
board  a  vessel  bound  for  territory  belonging  to  or 
occupied  by  the  enemy,  or  for  the  armed  forces  of  the 
enemy,^  and  when  it  is  not  to  be  discharged  in  an 
intervening  neutral  port/ 

(3)  In  cases  where  the  enemy  country  had  no  seaboard, 
Article  36 — in  contradistinction  to  the  provisions  of 
Article  35 — expressly  recognised  the  doctrine  of  con- 
tinuous voyages  for  conditional  contraband  also  by 
providing  that  '  notwithstanding  the  provisions  of 
Article  35,  conditional  contraband,  if  shown  to  have 
the  destination  referred  to  in  Article  33,  is  hable  to 
capture  in  cases  where  the  enemy  country  has  no 
seaboard.' 

However,  the  compromise  offered  by  the  Declara- 
tion of  London  was  not  accepted  by  the  Alhes  during 
the  World  War,  and  the  doctrine  of  continuous  voyages 
was  apphed  to  the  circuitous  or  indirect  carriage  of 
conditional  ^  as  well  as  of  absolute  contraband.  Thus 
the  British  Order  in  Council  of  October  29,  1914,  which 
replaced  the  first  Declaration  of  London  Order  of 
August  20,  1914,  provided  that :  '  Notwithstanding 
the  provisions  of  Article  35  of  the  said  Declaration 

*  Article    35  came   into    question  was  justified   was  subraittccl  to  the 

during  the  Turco-Italian  War.     In  Permanent  Court  of  Arbitration  at 

Januarj'  1912  the  Carthage,  a  French  the  Hague,  which,  on  May  6,  1913, 

mail-steamer   plying   between  Mar-  gave  its  award  in  favour  of  France, 

seilles  and  Tunis,  was  captured  for  See  Martens,  N.R.G.,  3rd  Ser.  viii. 

carriage  of  contraband  by  an  Italian  p.   174,  and  above,  vol.  i.  §  151  n. 

torpedo  boat  and  taken  to  Cagliari,  See     also     Rapisardi  -  Mirabelli     in 

because  she  hadan  aeroplane  destined  R.I.,  2nd  Ser.   xv.  (1913),  pp.   128- 

f or  Tunis  on  board.     As  the  destina-  135;    Ruzd  in   R.I.,   2nd  Ser.    xvi. 

tion  of  the  vessel  M'as  neutral,  and  (1914),  pp.  116-128;  Basdevant,  La 

as,  according  to  Article  24  of   the  Leron   juridique    des    Incidents    du 

declaration     aeroplanes    were    con-  'Carthage,'    du    ' 3fanouba,'    et   du 

ditional    contraband,    France    pro-  '  Tavignano' (\^\^). 
tested   against   the   capture   of    the 

vessel.     Italy  agreed  to  release  her,  -   The  Kim,  [1915]  P.  215  ;    1  B. 

and  the  question  whether  her  capture  and  C.  P.  C.  405. 


CARRIAGE   OF  CONTRABAND  575 

conditional  contraband  shall  be  liable  to  capture  on 
board  a  vessel  bound  for  a  neutral  fort  if  the  goods  are 
consigned  "to  order,"  or  if  the  ship's  papers  do  not 
show  who  is  the  consignee  ^  of  the  goods,  or  if  they 
show  a  consignee  of  the  goods  in  territory  belonging 
to  or  occupied  by  the  enemy/  By  an  order  of  March 
30,  1916,  this  provision  was  also  made  apphcable  to 
absolute  contraband. 

The  Allies  went  even  beyond  this,  for  the  order  of 
October  29, 1914,  laid  down  the  following  further  rules : — 
*  where  it  is  shown  .  .  .  that  the  enemy  Government 
is  drawing  supphes  for  its  armed  forces  from  or  through 
a  neutral  country,  [it  may  be  directed]  that  in  respect 
of  ships  bound  for  a  port  in  that  country.  Article  35 
of  the  said  Declaration  shall  not  apply  ...  so  long 
as  such  direction  is  in  force,  a  vessel  which  is  carrying 
conditional  contraband  to  a  port  in  that  country  shall 
not  be  immune  from  capture  ' ;  and  the  order  of  March 
30,  1916,  fm'ther  provided  that  '  the  destinations 
referred  to  in  Article  30  (absolute  contraband)  and  in 
Article  33  (conditional  contraband)  of  the  said  Declara- 
tion shall  ...  be  presumed  to  exist,  if  the  goods  are 
consigned  to  or  for  a  person,  who,  during  the  present 
hostihties,  has  forwarded  imported  contraband  goods 
to  territory  belonging  to  or  occupied  by  the  enemy.' 

In  all  the  cases  covered  by  these  provisions  of  these 
Orders  in  Council  the  burden  of  proving  that  the  desti- 
nation of  the  goods  was  innocent  was  laid  upon  the 
owner. 

However,  by  the  Maritime  Rights  Order  in  Council  of 
July  7, 1916,  the  Declaration  of  London  was  abandoned 
altogether,  and  it  was  provided  in  the  simplest  terms 
that  *  the  principle  of  continuous  voyage  or  ultimate 
destination  shall  be  apphcable  both  in  cases  of  contra- 
band and  of  blockade.'    This  order  also  laid  down 

^  See  The  Krcmprinzetsin  Victoria,  (1918)  3  B.  and  C.  P.  C.  247. 


576  CONTRABAND 

elaborate  presumptions  as  to  hostile  destination  which 
have  akeady  been  mentioned.^ 

Certain  new  applications  of  the  doctrine  of  continu- 
ous transports  or  indirect  carriage  of  contraband  were 
made  by  the  British  Prize  Courts  during  the  World 
War.  Thus,  in  1917,  it  was  decided  ^  that  the  doctrine 
of  continuous  transports  was  apphcable  even  in  a  case 
where  contraband  goods,  seized  while  on  their  way  to 
a  neutral  country,  had  been  intended,  after  having 
undergone  a  process  of  manufacture  there,  to  be  ex- 
ported from  the  neutral  to  an  enemy  country.  But 
the  British  Prize  Court  ^  expressed  the  view  that  it  would 
not  be  in  accordance  with  International  Law  '  to  hold 
that  raw  materials  on  their  way  to  citizens  of  a  neutral 
coimtry  to  be  converted  into  a  manufactured  article 
for  consumption  in  that  country  were  subject  to  con- 
demnation on  the  ground  that  the  consequence  might, 
or  even  would  necessarily,  be  that  another  article  of 
a  like  kind  and  adapted  for  a  Hke  use  would  be  exported 
by  other  citizens  of  the  neutral  country  to  the  enemy.* 

Ill 

CONSEQUENCES  OF  CARRIAGE  OF  CONTRABAND 

See  the  literature  quoted  above  at  the  commencement  of  §  391. 

Capture  §  404.  It  has  always  been  universally  recognised  by 
^vig^^li  theory  and  practice  that  a  vessel  carrying  contraband 
Contra-  may  be  seized  by  the  cruisers  of  the  belhgerent  con- 
cerned. But  seizure  is  allowed  only  so  long  as  a  vessel 
is  in  delicto ;  this  commences  when  she  leaves  the 
port  of  starting,  and  ends  when  she  has  deposited  the 
contraband  goods,  whether  with  the  enemy  or  other- 

»  Above,  §  395.  '   The   Bonna,    (1918)    3   B.    and 

*  The    Balto,    (1917)    2    B.    and       C.  P.  C.  163. 
C.  P.  C.  398. 


band. 


CONSEQUENCES  OF  CARRIAGE  OF  CONTRABAND   577 

wise.  The  rule  was  generally  recognised,  therefore, 
even  prior  to  the  Declaration  of  London,  that  a  vessel 
which  has  deposited  her  contraband  may  not  be  seized 
on  her  return  voyage.  British  and  American  practice 
had  indeed  admitted  one  exception  to  this  rule — 
namely,  in  the  case  in  which  a  vessel  had  carried  con- 
traband on  her  outward  voyage  with  simulated  and 
false  papers.!  But  no  such  exception  had  been  admitted 
by  the  practice  of  other  countries.  Thus,  when  in 
1879,  during  war  between  Peru  and  Chih,  the  German 
vessel  Luxor,  after  having  carried  a  cargo  of  arms  and 
ammunition  from  Monte  Video  to  Valparaiso,  was 
seized  in  the  harbour  of  Callao,  in  Peru,  and  condemned 
by  the  Peruvian  Prize  Courts  for  carrying  contraband, 
Germany  interfered,  and  succeeded  in  getting  the 
vessel  released.  Seizure  for  carriage  of  contraband  was 
only  admissible  on  the  open  sea  and  in  the  maritime 
territorial  belts  of  the  belhgerents.  Seizure  within 
the  maritime  belt  of  neutrals  would  be  a  violation  of 
neutrahty. 

Article  37  of  the  unratified  Declaration  of  London 
confirmed  these  old  customary  rules  by  providing  that  a 
vessel  carrying  goods  hable  to  capture  as  absolute  or 
conditional  contraband  may  be  captured  on  the  high 
seas  or  in  the  territorial  waters  of  the  belhgerents 
throughout  the  whole  of  her  voyage  even  if  she  is  to 
touch  at  a  port  of  call  before  reaching  the  hostile 
destination.  But  Article  38  rejected  the  British  and 
American  practice  by  providing  that  a  vessel  might 
not  be  captured  on  the  ground  that  she  had  carried 
contraband  2  on  a  previous  occasion  if  it  was  in  point 
of  fact  at  an  end. 


*  The  Nancy,  (1800)  3  C.  Rob.  122  ;  '  undoubtedly  severe ' ;  Halleck,  ii. 

The  Margaret,  (1810)  1  Acton  333.  p.  220,  defends  it.     See  also  Calvo, 

See    Holland,     Prize    Law,    §    80.  v.  §§  2756-2758. 
Wheaton,  i.  §  506,  n.  h,  condemns 

this  practice  ;   Hall,  §  247,  calls  it  '  But  see  below,  §  42So. 

VOL,  II.  2o 


578  CONTRABAND 

During  the  World  War,  however,  the  Alhes  adopted 
Article  37,  but  did  not  adopt  Article  38.     Thus  the 
British  Order  in  Council  of  October  29,  1914,  which 
replaced  the  order  of  August  20,  1914,  provided  that 
'  a   neutral   vessel,   with   papers   indicating  a   neutral 
destination,    which,    notwithstanding    the    destination 
shown  on  the  papers,   proceeds  to   an  enemy  port,^ 
shall  be  Hable  to  capture  and  condemnation  if  she  is 
encountered  before  the  end  of  her  next  voyage  * ;  and 
this  rule  was  re-enacted  in  the  Maritime  Rights  Order 
in  Council  of  July  7,  1916,  by  which  the  declaration 
was  abandoned. 
Penalty        §  405.  lu  formcr  times  neither  in  theory  nor  in  prac- 
riage^of    *ic^  ^QTQ  similar  rules  recognised  with  regard  to  the 
Contra-     penalty  for  carriage  of  contraband.     The  penalty  was 
according  frequently  confiscation   not   only  of   the   contraband 
Practice    cargo  itsclf,  but  also  of  all  other  parts  of  the  cargo, 
hitherto    together  with  the  vessel.     Only  France  made  an  excep- 
ing.         tion,  since,  according  to  an  ordonnance  of  1584,  she 
did  not  even  confiscate  the  contraband  goods  them- 
selves, but  only  seized  them  against  payment  of  their 
value ;    it  was  not  until  1681  that  an  ordonnance  pro- 
claimed  confiscation   of   contraband,    and   even   then 
with  exclusion  of  the  vessel  and  the  innocent  part  of 
the  cargo.2    During  the  seventeenth  century,  however, 
the  distinction  between  contraband  on  the  one  hand, 
and,  on  the  other,  the  innocent  goods  and  the  vessel 
was  clearly  recognised  by  Zouche  and  Bynkershoek, 
and  confiscation  of  the  contraband  alone  became  more 
and   more   the  rule,   certain   cases   excepted.     During 
the  eighteenth  century,  the  right  to  confiscate  contra- 

^  In  The  Alii-ina,  (191G)  2  B.  and  the  adventure,  discharged  the  con- 

C.  P.  C.  186,  affirmed  on  appeal  (3B.  traba-nd  cargo  at  a  neutral  port,  and 

and  C.   P.  C.  54),  it  was  held  that  sold  and  delivered  it  to  other  buyers, 
a    neutral    vessel    which    had    been 

carrying     contraband      with     false  '  See  Wheaton,  Histoire  des  Pro- 

papers  is  not  liable  to  capture  if  in  grl<i  du  Droit  des  Gens  en   Europe 

the   meantime   she   had    abandoned  (1841),  p.  82. 


CONSEQUENCES  OF  CARRIAGE  OF  CONTRABAND   579 

band  was  frequently  contested,  and  it  is  remarkable 
as  regards  the  change  of  attitude  of  some  States  that 
by  Article  13  of  the  Treaty  of  Friendship  and  Com- 
merce ^  concluded  in  1785  between  Prussia  and  the 
United  States  of  America  all  confiscation  was  abohshed. 
This  article  provided  that  the  belhgerent  should  have 
the  right  to  stop  vessels  carrying  contraband,  and  to 
detain  them  for  such  length  of  time  as  might  be  neces- 
sary to  prevent  possible  damage  by  them,  but  that 
they  should  be  paid  compensation  for  their  deten- 
tion. It  further  provided  that  the  belhgerent  might 
seize  all  contraband  against  payment  of  its  full  value, 
and  that,  if  the  captain  of  a  vessel  stopped  for  carrying 
contraband  dehvered  up  all  contraband,  the  vessel 
should  at  once  be  set  free.  I  doubt  w^hether  any  other 
treaty  of  the  same  kind  was  entered  into  by  either 
Prussia  or  the  United  States  ;  ^  and  it  is  certain  that, 
if  any  rule  regarding  the  penalty  for  carriage  of  contra- 
band was  generally  recognised  at  all,  it  was  the  rule 
that  contraband  goods  could  be  confiscated.  But 
there  always  remained  the  difficulty  that  what  articles 
were  contraband  was  controversial,  and  that  the  prac- 
tice of  States  varied  much  as  to  whether  the  vessel 
herself  and  innocent  cargo  carried  by  her  could  be 
confiscated.  For  beyond  the  rule  that  absolute  con- 
traband could  be  confiscated,  there  was  no  unanimity 

*  Martens,    R.,   iv.    p.    42.      The  contraband.      See  A.J.,  ix.   (1915), 

stipulation  was  renewed  by  Article  Special    Supplement,    pp.    180-193, 

13  of  the  Treaty  of  Friendship  and  and  x.    (1916),   Special  Supplement, 

Commerce  of  1799  and  by  Article  12  pp.  345-352;  Z.I.,  xxvi.  (1915),  pp. 

of    the    Treaty    of    Commerce   and  184-197. 
Navigation   concluded   between  the 

two  States  in  1828  ;  Martens,  ^  Article  12  of  the  Treaty  of  Com- 
R.,  vi.  p.  679,  and  N.R.,  vii.  p.  619.  merce  between  the  United  States  of 
These  treaties  were  the  subject  of  America  and  Italy,  signed  at  Florence 
diplomatic  correspondence  between  on  February  26,  1871 — see  Martens, 
the  United  States  and  Germany  JV.  R.  G. ,  2nd  Ser.  i.  p.  57 — stipulates 
during  the  World  W^ar,  Germany  immunity  from  seizure  of  such  pri- 
having  sunk  a  neutral  American  vate  property  only  as  does  not  con- 
vessel,  the  William  P.  Frye  (see  sist  of  contraband  or  attempt  to 
above,   §  395),  which  was  carrying  break  blockade.     See  above,  §  178. 


580  CONTRABAND 

regarding  the  fate  of  the  vessel  and  the  imiocent  part 
of  the  cargo.  Great  Britain  and  the  United  States 
of  America  confiscated  the  vessel  when  the  owner  of 
the  contraband  was  also  the  owner  of  the  vessel ;  they 
also  confiscated  such  part  of  the  innocent  cargo  as 
belonged  to  the  owner  of  the  contraband  goods ;  ^ 
they,  lastly,  confiscated  the  vessel,  although  her  owner 
was  not  the  owner  of  the  contraband,  if  the  vessel 
sailed  with  false  or  simulated  papers  for  the  purpose 
of  carrying  contraband,^  or  if  the  vessel  was  by  a  treaty 
with  her  flag  State  under  an  obhgation  not  to  carry 
the  goods  concerned  to  the  enemy  and  the  owner  knew 
that  his  vessel  was  carrying  contraband.^  To  these — as 
appears  from  The  HaJcan,^  decided  in  the  British  Prize 
Courts  during  the  World  War — British  practice  added 
a  third  case.  After  considering  the  practice  of  the 
past,  the  Privy  Council  felt  that  '  in  this  state  of  the 
authorities  they  ought  to  hold  that  knowledge  of  the 
character  of  the  goods  on  the  part  of  the  owner  of 
the  ship  is  sufiicient  to  justify  the  condemnation  of 
the  ship,  at  any  rate  where  the  goods  in  question  con- 
stitute a  substantial  part  of  the  whole  cargo.' 

Some  States  allowed  a  vessel  carrying  contraband 
which  was  not  herself  hable  to  confiscation  to  proceed 
with  her  voyage  on  dehvery  of  her  contraband  goods 
to  the  capturing  cruiser ;  ^  but  Great  Britain  ^  and  other 
States  insisted  upon  the  vessel  being  brought  before 
a  Prize  Court  in  every  case. 

As    regards    conditional    contraband,    those    States 

^  The  Kronprinsessan  Margareta,  ^  The  Neutralitet,  (\^(il)^C 'Rob. 

(1917)  2  B.  and  C.  P.  C.  409;    The  295  ;    The  Ringende  Jacob,  (1798)  1 

Annie    Johnson,    (1917)    3    B.    and  C.   Rob.  89 ;    The  Sarah  Christina, 

C.  P.  0.   138;    The  Posteiro,  (1917)  (1799)  1  C.  Rob.  237;  The  Franklin, 

3  B.  and  C.  P.  C.  275  ;  The  Parana,  (1801)  3  C.  Rob.  217. 

(1919)  3  B.  and  C.  P.  C.  482 ;    The  «  (1915)  2   B.    and  C.  P.  C.  210 

Antwerpen,  (1919)  3  B.  and  C.  P.  C.  and,  on  appeal,  479..  at  p.  487. 

»  See  Holland,  Prize  Law,  §§  82-  '  See  Calvo,  v.  §  2779. 

87.  "  See  Holland,  Prize  Law,  §  81. 


CONSEQUENCES  OF  CARRIAGE  OF  CONTRABAND   581 

which  made  any  distinction  at  all  between  absolute 
and  conditional  contraband,  frequently  confiscated 
neither  the  conditional  contraband  nor  the  carrying 
vessel,  but  seized  the  former  and  paid  for  it.  Accord- 
ing to  the  British  practice  ^  which  prevailed  from  the 
end  of  the  eighteenth  century,  freight  was  paid  to  the 
vessel,  and  the  usual  compensation  for  the  conditional 
contraband  was  the  cost  price  plus  ten  per  cent,  profit. 
States  acting  in  this  way  asserted  a  right  to  confiscate 
conditional  contraband,  but  exercised  pre-emption  in 
mitigation  of  such  a  right.  Those  Continental  writers 
who  refused  to  recognise  the  existence  of  conditional 
contraband,  denied  in  consequence  that  there  was  a 
right  to  confiscate  articles  which  were  not  absolute 
contraband ;  but  they  maintained  that  every  belH- 
gerent  had,  according  to  the  so-called  right  of  angary,^ 
a  right  to  stop  all  neutral  vessels  carrying  provisions 
and  other  goods  with  a  hostile  destination  of  which  he 
might  have  made  use,  and  to  seize  such  goods  against 
payment  of  their  full  value. 

§  406.  The  unratified  Declaration  of  London  offered  Penalty 
by  Articles  39  to  44  a  settlement  of  the  controversy  J^\°i[^^°s 
respecting  the  penalty  for  carriage  of  contraband  which  Deciara- 
represented    a   fair  compromise.     Contraband    goods,  London 
whether  absolute  or  conditional  contraband,  might  be  Hage^Jf 
confiscated   (Article   39).     The   carrjdng   vessel   might  po°^™- 
(Article  40)  hke\sase  be  confiscated  if  the  contraband, 
reckoned  either  by  value,  weight,  volume,  or  freight, 
formed  more  than  half  the  cargo.^    If  this  was  not 

^  See  Holland,  Prize  Lau\  %  84.  Article  40  of  the  Declaration  of 
Great  Britain  likewise  exercised  pre-  London  the  confiscation  of  the 
emption  instead  of  confiscation  with  carrying  vessel  takes  place  whether 
regard  to  such  absolute  contraband  or  not  her  owner  knew  that  she  was 
as  was  in  an  unmanufactured  con-  carrjung  contraband.  In  The  Hakan, 
dition  and  was  at  the  same  time  the  (1916)  2  B.  and  C.  P.  C.  210  and,  on 
produce  of  the  country  exporting  it.  appeal,  479,  it  was  held  (see  above, 
*  See  above,  §  365.  §  405)  that  knowledge  on  the  part  of 
'  In  The  Lorenzo,  (St.  Lucia  Prize  the  owner  of  the  vessel  that  a  sub- 
Court),  (1914)  1  B.  and  C.  P.  C.  220,  stantial  part  of  the  cargo  is  contra- 
it  was  correctly  decided  that  under  band  is  in  itself  suflicient  to  justify 


582  CONTEABAND 

the  case,  and  the  carrying  vessel  was  therefore  released, 
she  might  (Article  41)  be  condemned  to  pay  the  costs 
and  expenses  incurred  by  the  captor  in  respect  of  the 
proceedings  in  the  national  Prize  Court  and  the  custody 
of  the  ship  and  cargo  during  the  proceedings.  But 
whatever  might  be  the  proportion  between  contraband 
and  innocent  goods  on  a  vessel,  innocent  goods  (Article 
42)  which  belonged  to  the  owner  of  the  contraband 
and  were  on  board  the  same  carrying  vessel  might  be 
confiscated. 

If  a  vessel  carrying  contraband  sailed  before  the  out- 
break of  war  (Article  43),  or  was  unaware  of  a  declara- 
tion of  contraband  which  apphed  to  her  cargo,  or  had 
had  no  opportunity  of  discharging  her  cargo  after 
receiving  such  knowledge,^  the  contraband  might  only 
be  confiscated  on  payment  of  compensation,^  and  the 
vessel  herself  and  her  innocent  cargo  might  not  be 
confiscated,  nor  might  the  vessel  be  condemned  to  pay 
any  costs  and  expenses  incurred  by  the  captor.  But 
there  was  to  be  a  presumption  which  was  not  to  be 
rebuttable  with  regard  to  the  mens  rea  of  the  vessel. 

her  condemnation.  It  was  also  held  which  is  neutral  property.  If  enemy 
in  this  case  in  the  court  of  first  property,  it  may  be  condemned  with- 
instance  (at  p.  226)  and  in  The  out  compensation.  See  The  Sorfar- 
Maracaibo,  (1916)  2  B.  and  C.  P.  C.  eren,  (1915)  1  B.  and  C.  P.  C.  580. 
294,  that,  independently  of  the  De-  ^  It  is  obvious  that  the  vessel  must 
claration  of  London,  it  is  now  a  rule  be  brought  into  a  port  and  before  a 
of  International  Law  that  the  carry-  Prize  Court  if  the  captor  desires  to 
ing  vessel  may  be  condemned  if  the  seize  the  contraband  against  com- 
contraband,  reckoned  either  by  pensation.  The  question  whether 
value,  weight,  volume,  or  freight.  Article  44  applied  to  such  a  case, 
forms  more  than  half  the  cargo.  It  and  whether  therefore  the  neutral 
was  further  held  in  The  Maracaiho,  vessel  might  be  allowed  to  continue 
that  this  rule  applies  even  when  the  her  voyage  if  the  master  was  willing 
owner  of  the  vessel  is  ignorant  of  to  hand  over  the  contraband  to  the 
the  contraband  character  of  the  captor,  must  be  answered  in  the 
goods.  But  doubts  were  expressed  afBrmative,  provided  that  the  con- 
on  this  point  in  The  Dirigo,  (1919)  traband,  reckoned  either  by  value, 
3  B.  and  C  P.  C.  439.  See  also  The  weight,  volume,  or  freight,  formed 
milerod,  (1917)  3  B.  and  C.  P.  C.  less  than  half  the  cargo.  For  Article 
48;  The  Ran,  [1919]  P.  317,  3  B.  44  precisely  treated  of  a  case  in 
and  C.  P.  C.  621  ;  The  Kim,  [1920]  which  the  vessel  herself  was  not 
P.  319.  liable  to  condemnation  on  account  of 
^  It  seems  to  be  obvious  that  the  proportion  of  the  contraband  on 
Article    43    only   applies    to    cargo  board  (see  Article  40). 


CONSEQUENCES  OF  CARRIAGE  OF  CONTRABAND   583 

For  according  to  the  second  paragraph  of  Article  43, 
a  vessel  was  to  be  considered  to  have  knowledge  of  the 
outbreak  of  war,  or  of  a  declaration  of  contraband,  if 
she  left  an  enemy  port  after  the  outbreak  of  hostihties, 
or  if  she  left  a  neutral  port  after  the  notification  of  the 
outbreak  of  hostihties,  or  of  the  declaration  of  contra- 
band to  the  Power  to  which  such  port  belonged,  pro- 
vided that  such  notification  was  made  in  sufficient  time. 
However,  the  declaration  did  not  secure  ratification. 

The  question  of  pre-emption  of  conditional  contra- 
band was  not  mentioned  by  the  Declaration  of  London. 
There  is,  however,  nothing  to  prevent  the  several 
maritime  Powers  from  exercising  pre-emption  in  miti- 
gation of  their  right  of  confiscation. 

§  406a.  Prior  to  the  Declaration  of  London,  the  practice  Seizure  of 
of  the  several  States  had  differed  ^  with  regard  to  the  ^°^^^' 
question  whether  a  vessel  w^hich  was  not  herself  Hable  ^'ithout 
to  condenmation  might  be  allowed  to  proceed  on  her  of  the 
voyage,  on  condition  that  she  handed  over  the  con-    ^^^^' 
traband  carried  by  her  to  the  captor.     Great  Britain 
and  some  other  States  answered  it  in  the  negative  ;  but 
several  States  in  the  affirmative.    The  maratified  Declara- 
tion of  London,  although  it  upheld  the  general  rule 
that,  whatever  might  be  the  ultimate  fate  of  the  vessel, 
she  must  be  taken  into  a  port  of  a  Prize  Court,  admitted 
two  exceptions  to  the  rule  : — 

(1)  According  to  Ai'ticle  44,  a  vessel  which  had  been 
stopped  for  carrying  contraband  and  which  was  not 
herself  hable  to  be  confiscated  on  account  of  the  pro- 
portion of  contraband  on  board,  might — not  must — 
w^hen  the  circumstances  permitted  it,  be  allowed  to  con- 
tinue her  voyage  in  case  she  handed  over  the  contra- 
band cargo  to  the  captor.  In  such  a  case,  the  captor 
was  to  be  at  hberty  to  destroy  the  contraband  handed 
over  to  him.     But  the  matter  had  in  any  case  to  be 

^  See  above,  §  405. 


584  COISTRABAND 

brought  before  a  Prize  Court.  The  captor  had  there- 
fore to  enter  the  deHvery  of  the  contraband  on  the 
log-book  of  the  vessel  so  stopped,  and  the  master  had 
to  give  duly  certified  copies  of  all  relevant  papers  to 
the  captor. 

(2)  According  to  Article  54,  the  captor  might  ^  excep- 
tionally, in  case  of  necessity,  demand  the  handing  over, 
or  might  proceed  himself  to  the  destruction,  of  any 
absolute  or  conditional  contraband  goods  found  on  a 
vessel  which  was  not  herself  hable  to  condemnation, 
if  the  taking  of  the  vessel  into  the  port  of  a  Prize  Court 
would  involve  danger  to  the  safety  of  the  capturing 
cruiser,  or  to  the  success  of  the  operations  in  which 
she  was  engaged  at  the  time.  But  the  captor  had 
nevertheless  to  bring  the  case  before  a  Prize  Court. 
He  had,  therefore,  to  enter  the  captured  goods  on  the 
log-book  of  the  stopped  vessel,  and  obtain  duly  certified 
copies  of  all  relevant  papers.  If  the  captor  could  not 
estabhsh  before  the  Prize  Court  that  he  was  really 
compelled  to  abandon  the  intention  of  bringing  in  the 
carrying  vessel,  he  was  to  be  condemned  (see  Article  51) 
to  pay  the  value  of  the  goods  to  their  owners  whether 
contraband  or  not. 

However,  the  declaration  has  not  been  ratified. 

During  the  earHer  part  of  the  World  War  the  Allies 
adopted  the  rules  of  the  imjatified  declaration  which 
have  been  mentioned  in  this  and  the  preceding  section ; 
when,  in  July  1916,  Great  Britain  and  France  abandoned 
the  declaration  altogether,  they  expressly  retained 
Article  40. 

1  See  below,  §  431. 


CHAPTER  V 

UNNEUTRAL  SERVICE 

I 

THE   DIFFERENT  KINDS  OF  UNNEUTRAL  SERVICE 

HaU,  §§  248-253  — Lawrence,  §§  260-262  —  Westlake,  ii.  pp.  302-306  — 
Phillimore,  iii.  §§  271-274— Halleck,  ii.  pp.  305-344— Taylor,  §§667-673 
—Walker,  §  72— Wharton,  iii.  §  374— Wheaton,  §§  502-504  and  Dana's 
note  228— Moore,  vii.  §§  1264-1265— Hershey,  Nos.  513-515— Blunt- 
Bchli,  §§  815-818— Heffter,  §  161a— Geffcken  in  Holtzendorff,  iv.  pp.  731- 
738— Ullmann,  §  192— Bonfils,  Nos.  1584-1588— Despagnet,  Nos.  716- 
716  ;)«■«- Rivier,  ii.  pp.  388-391— Nys,  iii.  pp.  671-678— Calvo,  v.  §§ 
2796-2820— Fiore,  iii.  Nos.  1602-1605,  and  Code,  Nos.  1859-1863— 
Martens,  ii.  §  136— Kleen,  i.  §§  103-106— Boeck,  Nos.  660-669— Fillet, 
pp.  330-332— Gessner,  pp.  99-111— Perels,  §  47— Testa,  p.  212— Dupuis, 
Nos.  231-238,  and  Guerre,  Nos.  172-188— Bernsten,  §  9— Nippold,  ii, 
§35— Schramm,  §  11— Holland,  Prize  Law,  §§  88-105— U.S.  Naval  War 
Code,  Articles  16  and  20— Hautefeuille,  ii.  pp.  173-188— Ortolan,  ii.  pp. 
209-213 — Mountague  Bernard,  Neutrality  of  Great  Britain  durinrj  the 
American  Civil  War  (1870),  pp.  187-225 — Marquardsen,  Der  Trent- Fall 
(1862),  pp.  58-71 — Hirsch,  Kriegakonterhande  und  verhotene  Trantporte 
in  Kriegszeiten  (1897),  pp.  42-55 — Takahashi,  International  Law  during 
the  Ghino-Japanese  War  (1899),  pp.  52-72 — Vetzel,  De  la  Contrehande 
par  Analogic  en  Droit  maritime  intemaiionale  (1901) — Atherley-Jones, 
Commerce  m  War  (1907),  pp.  304-315 — Hirschmann,  Das  intemationale 
Priienrecht  (1912),  §§  31-32 — Pastureau,  Dea  Transports  interdita  aux 
Neutrea  (1912)— Wehberg,  pp.  123-132— Garner,  ii.  §§  538-545— See  also 
the  monographs  quoted  above  at  the  commencement  of  §  391,  and  the 
General  Report  presented  to  the  International  Naval  Conference  of 
London  on  behalf  of  the  Drafting  Committee,  Articles  45-47,  Cd.  4554, 
p.  55. 

§  407.  Before  the  Naval  Conference  of  London  held  Un- 
in  1908,  the  term  unneutral  service  had  been  used  bygg^^cei 
several  writers  with  reference  to  the  carriage  by  neutral  general, 
vessels  of  certain  persons  and  despatches  for  the  enemy. 
The   term  had  been  introduced  to   distinguish  such 


586  UNNEUTRAL   SERVICE 

carriage  of  persons  and  despatches  from  the  carriage 
of  contraband,  with  which  it  was  often  confounded. 
Since  contraband  consists  of  certain  goods  only,  and 
never  of  persons  or  despatches,  a  vessel  carrying  persons 
and  despatches  for  the  enemy  does  not  carry  contra- 
band ;  ^  and  there  is  another  important  difference. 
Carriage  of  contraband  need  not  necessarily,  and  in 
most  cases  in  practice  does  not,  take  place  in  the  direct 
service  of  the  enemy.  On  the  other  hand,  carriage  of 
persons  and  despatches  for  the  enemy  always  does 
take  place  in  the  direct  service  of  the  enemy,  and, 
consequently,  represents  much  more  intensive  assist- 
ance to  him,  and  a  much  more  intimate  connection 
with  him  than  carriage  of  contraband.  For  these 
reasons,  separate  treatment  for  carriage  of  contraband 
and  for  carriage  of  persons  and  despatches  was  cer- 
tainly considered  desirable  by  many  pubhcists.  Those 
among  them  who  did  not  adopt  the  term  unneutral 
service,  on  account  of  its  somewhat  misleading  char- 
acter, preferred  ^  the  expression  analogous  of  contra- 
hand,  because  in  practice  maritime  transport  for  the 
enemy  was  always  treated  as  analogous  to,  although 
not  as  identical  with,  carriage  of  contraband.^ 

The  unratified  Declaration  of  London  sought  to 
place  the  whole  matter  upon  a  new  and  very  much 
enlarged  basis,  for  Articles  45  to  47  treated,  mider  the 
heading  De  Vassistance  hostile — the  ofiicial  Enghsh 
translation  of  which  was  unneutral  service — not  only  of 
carriage  of  persons  for  the  enemy  by  a  neutral  vessel, 
but  also  of  transmission  of  intelhgence  in  his  interest, 

^  This    was    recognised    in     The  London,  of  the  term  mmewiraZ  service, 

Yangtsze    hisurance    Association    v.  it  was  useless  to  oppose  it. 
Indemnity  Mutual  Marine  Assurance 

Company,  [1908]  1  K.B.  910  ;  [1908]  ^  Although— see  above,  §§  173-174 

2K.B.  504.  — prevention  of  unneutral  service  to 

^  It  was  also  preferred  in  the  first  the  enemy  is  a  means  of  sea  warfare, 

edition  of  this  work.     But  after  the  it  chiefly  concerns  neutral  commerce, 

ofiicial  adoption,  in  the  translation  and  is  therefore  more  conveniently 

of    the    unratified    Declaration    of  treated  with  neutrality. 


DIFFERENT  KINDS   OF  UNNEUTRAL  SERVICE       587 

of  taking  a  direct  part  iu  the  hostilities,  and  of  a 
number  of  other  acts.  The  unratified  declaration 
made  a  broad  distinction  between  two  kinds  of  mi- 
neutral  service,  meting  out  for  the  one  treatment 
analogous  in  a  general  way  to  the  treatment  of  con- 
traband, and  for  the  other  treatment  analogous  to 
that  of  enemy  merchant  vessels.  Carriage  of  individual 
members  of  the  armed  forces  of  the  enemy,  and  a 
certain  case  of  transmission  of  intelhgence  in  the 
interest  of  the  enemy,  constituted  the  first  kind ;  and 
four  groups  of  acts  bestowing  enemy  character  on  the 
vessel  concerned  constituted  the  second  kind. 

At  the  outbreak  of  the  World  War  the  Allies  adopted 
the  rules  relating  to  unneutral  service  contained  in  the 
unratified  Declaration  of  London,  and  apphed  them 
(subject  to  reprisals  ^)  without  modification  until  the 
whole  declaration  was  abandoned  in  July  1916.  There- 
after the  customary  rules  prevaihng  before  the  Naval 
Conference  of  London  again  became  apphcable.^  After 
that  date,  however,  few  (if  any)  cases  of  unneutral 
service  came  before  Prize  Com'ts  in  which  general 
principles  were  laid  down  or  apphed :  and  as  condi- 
tions have  changed  greatly  since  the  old  customary 
rules  grew  up,  the  present  position  of  the  law  of  un- 
neutral service  is  masatisfactory. 

§  408.  Either  belhgerent  may  punish  neutral  vessels  Carriage 
for  carrjang,  in  the  service  of  the  enemy,  certain  persons,  f^j.  ^^1°^^ 
Such   persons   included,    according   to   the   customary  Enemy. 
rules  of  International  Law  prevaihng  before  the  un- 
ratified Declaration  of  London,  not  only  members  of 
the  armed  forces  of  the  enemy,  but  also  individuals 
who,   though  not  yet  members  of  the  armed  forces, 
would  have  become  so  as  soon  as  they  reached  their 
place  of  destination,   and,   thirdly,  non-mihtary  indi- 
viduals in  the  service  of  the  enemy  who  were  either  in 

^  See  below,  §  413a.  -  See  above,  §  292. 


588  UNNEUTRAL  SERVICE 

such  a  prominent  position  that  they  could  be  made 
prisoners  of  war,  or  were  going  abroad  as  agents  for 
the  purpose  of  fostering  the  cause  of  the  enemy.  Thus, 
for  instance,  if  the  head  of  the  enemy  State,  or  one 
of  his  cabinet  ministers,  fled  the  country  to  avoid 
captivity,  the  neutral  vessel  that  carried  him  could 
have  been  punished,  as  could  also  the  vessel  carrying 
an  agent  of  the  enemy  sent  abroad  to  negotiate  a  loan 
and  the  like.  However,  the  mere  fact  that  enemy 
persons  were  on  board  a  neutral  vessel  did  not  in  itself 
prove  that  they  were  carried  by  the  vessel  for  the 
enemy,  and  in  his  service.  This  was  the  case  only 
when  the  vessel  knew  of  the  character  of  the  persons 
and  nevertheless  carried  them,  thereby  acting  in  the 
service  of  the  enemy,  or  when  the  vessel  was  directly 
hired  by  the  enemy  for  the  purpose  of  transporting 
the  individuals  concerned.  Thus,  for  instance,  if  able- 
bodied  men  booked  their  passages  on  a  neutral  vessel 
to  an  enemy  port  with  the  secret  intention  of  enhsting 
in  the  forces  of  the  enemy,  the  vessel  could  not  be 
considered  as  carrying  persons  for  the  enemy ;  but 
she  could  be  so  considered,  if  an  agent  of  the  enemy 
openly  booked  their  passages.  Thus,  further,  if  the 
fugitive  head  of  the  enemy  State  booked  his  passage 
under  a  false  name,  and  concealed  his  identity  from 
the  vessel,  she  could  not  be  considered  as  carrying  a 
person  for  the  enemy  ;  but  she  could  be  so  considered, 
if  she  knew  whom  she  was  carrying,  because  she  was 
then  aware  that  she  was  acting  in  the  service  of  the 
enemy.  As  regards  a  vessel  directly  hired  by  the 
enemy,  there  could  be  no  doubt  that  she  was  acting 
in  the  service  of  the  enemy.  Thus  the  American  vessel 
Orozembo^  was  in  1807,  during  war  between  England 
and  the  Netherlands,  captured  and  condemned  because, 
although  chartered  by  a  merchant  in  Lisbon  ostensibly 

^  6  0.  Rob.  430. 


DIFFERENT   KINDS   OF   UNNEUTRAL   SERVICE       589 

to  sail  in  ballast  to  Macao  and  to  take  from  there  a 
cargo  to  America,  she  received,  by  order  of  the  char- 
terer, three  Dutch  officers  and  two  Dutch  civil  servants, 
and  sailed,  not  to  Macao,  but  to  Batavia.  The  American 
vessel  FriendsJd])  ^  was  likewise  in  1807,  during  war 
between  England  and  France,  captured  and  condemned, 
because  she  was  hired  by  the  French  Government  to 
carry  ninety  shipwrecked  officers  and  sailors  home  to  a 
French  port. 

According  to  British  practice  prevaihng  before  the 
unratified  Declaration  of  London,  a  neutral  vessel  was 
considered  as  carrying  persons  in  the  service  of  the 
enemy  even  if  she  had  been  forcibly  constrained  by 
the  enemy  to  carry  them,  or  if  she  was  bona  fide  in 
ignorance  of  the  status  of  her  passengers.  Thus,  in 
1802,  during  war  between  Great  Britain  and  France, 
the  Swedish  vessel  Carolina  ^  was  condemned  by  Sir 
WilHam  Scott  for  having  carried  French  troops  from 
Egypt  to  Italy,  although  the  master  endeavoured  to 
prove  that  the  vessel  was  forced  to  render  the  transport 
service ;  and  the  above-mentioned  vessel  Orozemho 
was  condemned,^  although  her  master  was  ignorant  of 
the  service  for  the  enemy  on  which  he  was  engaged  : 
*  ...  In  cases  of  bona  fide  ignorance  there  may  be 
no  actual  dehnquency ;  but  if  the  service  is  injurious, 
that  wiU  be  sufficient  to  give  the  belhgerent  a  right  to 
prevent  the  thing  from  being  done  or  at  least  repeated,' 
said  Sir  WilHam  Scott.* 

^  6  C  Rob.  420.  tenant    of    the    Russian    destroyer 

*  4  C.  Rob.  256.  RaUtorojmy  •  see  Takahashi,  pp.  639- 

*  See  Phillimore,  iii.  §  274,  and  641,  and  Hurst  and  Bray,  ii.  p.  201. 
Holland,  Prize  Law,  §§  90-91.  Hall,  ■*  It  should  be  mentioned  that, 
§  249  n.,  reprobates  the  British  according  to  the  customary  law 
practice.  During  the  Russo-Japanese  hitherto  prevailing,  the  case  of 
War  only  one  case  of  condemnation  diplomatic  agents  sent  by  the  enemj' 
of  a  neutral  vessel  for  carrying  to  neutral  States  was  an  exception 
persons  for  the  enemy  is  recorded,  to  the  rule  that  neutral  vessels  may 
that  of  The  Nigretia,  a  vessel  which  be  punished  for  carrying  agents  sent 
endeavoured  to  carry  into  Vladi-  by  the  enemy.  The  importance  of 
vostok  the  escaped  captain  and  lieu-  this  exception  became  apparent  in 


590 


UNNEUTRAL   SERVICE 


According  to  the  unratified  Declaration  of  London  neutral 
merchantmen  (apart  from  the  case  of  the  carriage  of  persons 
who  in  the  course  of  the  voyage  directly  assist  the  opera- 
tions of  the  enemy)  might  only  be  considered  to  render 
unneutral  service  if  they  carried  such  enemy  persons  as 
were  already  actually  members  of  the  armed  forces  of 
the  enemy.  Article  45  made  it  quite  apparent,  through 
using  the  words  '  embodied  in  the  armed  forces,'  that  reser- 
vists and  the  like  who  were  on  their  way  to  the  enemy 
country  for  the  purpose  of  there  joining  the  armed  forces, 
were  not  ^  among  the  classes  of  enemy  persons  which  a 
neutral  vessel  might  not  carry  without  exposing  herself  to 
punishment  for  rendering  unneutral  service  to  the  enemy. 


the  case  of  The  Trent  which  occurred 
during  the  American  CiWl  War.  On 
November  8, 1861,  the  Federal  cruiser 
San  Jacinto  stopped  the  British  mail 
steamer  Trent  on  her  voj'age  from 
Havana  to  the  British  port  of  Nassau, 
in  the  Bahamas,  forcibly  took  off 
Messrs.  Mason  and  Slidell,  together 
with  their  secretaries,  political  agents 
sent  by  the  Confederate  States  to 
Great  Britain  and  France,  and  then 
let  the  vessel  continue  her  voyage. 
Great  Britain  demanded  their  im- 
mediate release,  and  the  United 
States  at  once  granted  this,  although 
the  ground  on  which  release  was 
granted  was  not  identical  with  the 
ground  on  which  it  was  demanded. 
The  United  States  maintained  that 
the  removal  of  these  men  from  the 
vessel  without  bringing  her  before  a 
Prize  Court  for  trial  M'as  irregular, 
and  therefore  not  justified,  whereas 
release  was  demanded  on  the  ground 
that  a  neutral  vessel  could  not  be 
prevented  from  carrying  diplomatic 
agents  sent  by  the  enemy  to  neutrals. 
Now  diplomatic  agents  in  the  proper 
sense  of  the  term  these  gentlemen 
were  not,  because,  although  they 
were  sent  by  the  Confederate  States, 
the  latter  were  not  recognised  as 
such,  but  only  as  a  belligerent  Power. 
Yet  they  were  political  agents  of  a 
quasi-diplomatic  character,  and  the 
standpoint  of  Great  Britain  was  for 
this  reason  perhaps  correct.  The 
fact  that  the  Governments  of 
France,    Austria,  and   Prussia   pro- 


tested through  their  diplomatic 
envoys  in  Washington  shows  at 
least  that  neutral  vessels  may  carry 
unhindered  on  the  open  sea  (though 
not  through  the  territorial  waters  of 
the  other  belligerent  —  see  above, 
vol.  i.  §  .398,  and  the  cases  of  Tar- 
nowski,  Dumha,  and  Bemsdorff  there 
mentioned)  diplomatic  agents  sent 
by  the  enemy  to  neutrals,  however 
doubtful  it  may  be  whether  the  same 
is  valid  regarding  agents  with  a 
quasi-diplomatic  character.  See  Pari. 
/'a^ers,  (1862)  North  America,  No.  5 ; 
Marquardsen,  Der  Trent-Fall  (1862)  ; 
Wharton,  iii.  §  374  ;  Moore,  vii.  § 
1265;  Phillimore,  ii.  §§  1 30-1 30a  ; 
Mountagiie  Bernard,  Neutrality  of 
Great  Britain  during  the  American 
Civil  War  (1870),  pp.  187-225; 
Harris,  The  Trent  Affair  (1896). 
But  see  The  Pontoporos,  (1915)  1  B. 
and  C.  P.  C.  371;  (1916)  2  B.  and 
C.  P.  C.  87,  where  this  and  other 
cases  were  considered  ;  compare  also 
The  Svithiod,  [1920]  A.C.  718. 

*  But  see  the  French  case  of  The 
Frederico  (\^\5) — Gamer,  ii.  §544; 
text  in  E.G.,  xxii.  (1915),  Juris- 
prudence, p.  17,  xxiv.  (1917),  Juris- 
prudence, p.  11^ — in  which  the  Prize 
Court  of  Appeal,  in  direct  opposition 
to  the  Renault  Report  on  the  De- 
claration of  London,  decided  that 
reservists  on  their  way  home  from 
abroad  are  considered  to  be  '  incor- 
porated '  in  the  army  of  their  home 
State. 


DIFFERENT   KINDS    OF   UNNEUTRAL   SERVICE       591 

Four  different  cases  of  carr3dng  members  of  the  armed 
forces  of  the  enemy  were  distinguished  by  the  unratified 
declaration,  namely  (1)  that  of  a  neutral  vessel  exclusively 
engaged  in  the  transport  of  enemy  troops,  (2)  that  of  a 
vessel  transporting  a  miUtary  detachment  of  the  enemy, 
(3)  that  of  a  vessel  transporting  one  or  more  persons  who 
in  the  course  of  the  voyage  directly  assist  the  operations 
of  the  enemy,  (4)  that  of  a  vessel  transporting,  on  a 
voyage  specially  undertaken,  individual  members  of  the 
armed  forces  of  the  enemy. 

(1)  According  to  Article  46  (4)  a  neutral  vessel  exclu- 
sively appropriated  at  the  time  to  the  transport  of  enemy 
troops  acquired  thereby  enemy  character.  This  case  will 
be  considered  with  others  of  the  same  kind  below. ^ 

(2)  In  case  a  vessel,  not  exclusively  appropriated  to 
that  work,  and  not  on  a  voyage  specially  undertaken  for 
that  purpose,  transported,  to  the  knowledge  of  either  the 
owner  or  the  charterer  or  the  master,  a  mihtary  detach- 
ment of  the  enemy,  she  was,  according  to  Article  45  (2), 
to  be  considered  to  render  unneutral  service  for  which  she 
might  be  punished.  Accordingly,  if  to  the  knowledge  of 
either  the  owner  or  the  charterer  or  the  master,  a  neutral 
vessel  in  the  ordinary  course  of  her  voyage  carried  a  miUtary 
detachment  of  the  enemy,  she  was  to  be  liable  to  be  seized 
for  unneutral  service. 

(3)  In  case  a  neutral  vessel,  to  the  knowledge  of  either 
the  owner  or  the  charterer  or  the  master,  carried  one  or 
more  persons  —  whether  a  belligerent  or  neutral  subject 
—  who  in  the  course  of  the  voyage  directly  assisted  the 
operations  of  the  enemy  in  any  way,  for  instance  by  signal- 
Ung  or  sending  a  message  hj  wireless  telegraphy,  she  was, 
according  to  Article  45  (2),  to  be  hkewise  liable  to  seizure 
for  rendering  umieutral  service. 

(4)  In  case  a  neutral  vessel  carried  individual  members 
of  the  armed  forces  of  the  enemy,  she  was,  according  to 
Article  45  (1),  only  to  be  Uable  to  seizure  if  she  was  on  a 
voyage  specially  undertaken  for  such  transport,  e.g.  if  she 

1  §  410. 


592  UNNEUTRAL   SERVICE 

had  been  diverted  from  her  ordinary  course  and  had  touched 
at  a  port  outside  her  ordinary  course  for  the  purpose  of 
embarking,  or  was  going  to  touch  at  a  port  outside  her 
ordinary  course  for  the  purpose  of  disembarking,  the  enemy 
persons  concerned.  A  hner,  therefore,  carrjdng  individual 
members  of  the  armed  forces  of  the  enemy  in  the  ordinary 
course  of  her  voyage  might  not  be  considered  to  be  render- 
ing unneutral  service  and  might  not  be  seized.  However, 
according  to  Article  47,  a  neutral  vessel  carrying  members 
of  the  armed  forces  of  the  enemy  while  pursuing  her  ordinary 
course,  might  be  stopped  for  the  purpose  of  taking  off 
such  enemy  persons  and  making  them  prisoners  of  war.^ 

But   the   rules   formulated    by   the   Declaration   of 
London  are  not  binding,   and  the  former  customary 
rules  remain  applicable. 
Trans-  §  409.  Either  belHgerent  may  punish  neutral  mer- 

rTir°  °^  chantmen  for  transmission  of  intelhgence  to  the  enemy. 
gence  to  Accordiug  to  customary  rules  of  International  Law 
Enemy,  either  belHgerent  may  punish  neutral  vessels  for  the 
carriage  of  political  despatches  from  or  to  the  enemy, 
and  especially  such  despatches  as  relate  to  the  war. 
But  to  this  rule  there  have  been  two  exceptions.  First, 
as  neutrals  have  a  right  to  demand  that  their  intercourse 
with  either  belHgerent  be  not  suppressed,  a  neutral  vessel 
might  not,  according  to  the  old  cases,  be  punished  for 
carrying  despatches  from  the  enemy  to  neutral  Govern- 
ments, and  vice  versa,^  or  from  the  enemy  Government 
to  its  diplomatic  agents  and  consuls  abroad  in  neutral 
States,  and  vice  versa.^  The  second  exception  was 
created  by  Article  1  of  Hague  Convention  xi.  relative 
to  postal  correspondence,^  which  provides  that  postal 
correspondence,  whether  private  or  official,  is  inviol- 
able. However,  the  mere  fact  that  a  neutral  vessel 
has  poHtical  despatches  to  or  from  the  enemy  on  board 

^  See  below,  §  413.  '  The   Madison,   (1810)    Edwards 

*  The  Caroline,  (1808)  6  C.  Rob.       224. 
461.  *  As  to  which,  see  above,  §  191, 


DIFFERENT   KINDS   OF  UNNEUTRAL  SERVICE       593 

does  not  by  itself  prove  that  she  is  carrying  them /or  and 
in  the  service  oj  the  enemy.  Just  as  in  the  case  of  certain 
enemy  persons  on  board,  so  in  the  case  of  despatches, 
the  vessel  is  only  considered  to  be  carrying  them  in 
the  service  of  the  enemy  if  she  knows  of  their  character 
and  has  nevertheless  taken  them  on  board,  or  if  she 
is  directly  hired  for  the  purpose  of  carrying  them. 
Thus,  the  American  vessel  Ra'pid}  which  was  captured 
during  the  war  between  Great  Britain  and  the 
Netherlands,  on  her  voyage  from  New  York  to  Ton- 
ningen,  for  having  on  board  a  despatch  for  a  cabinet 
minister  of  the  Netherlands  hidden  under  a  cover 
addressed  to  a  merchant  at  Tonningen,  was  released 
by  the  Prize  Court.  On  the  other  hand,  the  Atalanta,'^ 
which  carried  despatches  in  a  tea  chest  hidden  in  the 
trmik  of  a  supercargo,  was  condemned.^ 

According  to  the  unratified  Declaration  of  London,  the 
carriage  of  despatches  for  the  enemy  might  only  be  punished 
in  case  it  fell  under  the  category  of  transmitting  intelli- 
gence to  the  enemy  on  the  part  of  a  neutral  vessel.  Two 
kinds  of  such  transmission  of  intelHgence  had  to  be  dis- 
tinguished : — 

First,  according  to  Article  46  (4),  a  neutral  vessel  exclu- 
sively intended  for  the  transmission  of  intelhgence  to  the 
enemy  acquired  thereby  enemy  character  ;  this  will  be 
considered  with  other  cases  of  the  same  kind  below.* 

Secondly,  according  to  Article  45  (1),  a  neutral  vessel 
might  be  seized  for  transmitting  intelhgence  to  the  enemy 
if  she  was  on  a  voyage  specially  undertaken  for  such  trans- 
mission, e.g.  if  she  had  been  diverted  from  her  ordinary 
course  and  had  touched  or  was  going  to  touch  at  a  port 
outside  her  ordinary  course  for  the  purpose  of  transmitting 

^  (1810)  Edwards  228.  spite    of    the    case   of    The   Rapid, 

2  ncAo\e/^    -D  u    AAn  quoted  above,  Holland,  Prize  Law, 

(1808)  6  C.  Rob.  440.  ^  ^qO^  maintains  that  ignorance  of 

'  British  practice  seems  unsettled  the  master  of  the  vessel  is  no  excuse, 

on  the  question  whether  the  vessel  and  Phillimore,  iii.   §  272,  seems  to 

must  know  of  the  character  of  the  be  of  the  same  opinion, 
despatch  which  she  is  carrying.     In  *  §  410. 

VOL.    II.  2  P 


594  UNNEUTRAL  SERVICE 

intelligence  to  the  enemy.  A  liner,  therefore,  transmitting 
intelligence  to  the  enemy  in  the  ordinary  course  of  her 
voyage  might  not  be  considered  to  be  rendering  unneutral 
service,  and  might  not  be  punished.  However,  self-pre- 
servation would  in  a  case  of  necessity  have  justified  a  beUi- 
gerent  in  temporarily  detaining  such  a  Uner  for  the  purpose 
of  preventing  the  inteUigence  from  reaching  the  enemy .^ 

The  conception  '  transmission  of  inteUigence  '  was  not 
defined  by  the  Declaration  of  London.  It  certainly  meant, 
not  only  oral  transmission  of  inteUigence,  but  also  the 
transmission  of  despatches  containing  inteUigence.  The 
transmission  of  any  poUtical  inteUigence  of  value  to  the 
enemy,  whether  relating  to  the  war  or  not,  ought  to  have 
been  considered  unneutral  service,  unless  it  was  inteUi- 
gence transmitted  from  the  enemy  to  neutral  Govern- 
ments, or  vice  versa,  or  from  the  enemy  Government  to 
its  diplomatic  agents  and  consuls  abroad  in  neutral  States. 

But  the  rules  contained  in  the  Declaration  of  London 
are  not  binding,  and  the  old  customary  rules  remain 
applicable. 

Un-  §  410.  In  contradistinction  to  cases  of  unneutral  service 

neutral      which  are  similar  to  carriage  of  contraband,  the  Declara- 

Service 

creating    tion  of   Londou  enumerated  in  Article   46  four  cases  of 
Enemy      g^ch  kinds  of  unneutral  service  as  vested  neutral  vessels 

Char- 
acter,       with  enemy  character. ^ 

(1)  There  was,  first,  the  case  of  a  neutral  merchantman 
taking  a  direct  part  in  the  hostihties.  This  might  occur 
in  several  ways,  but  such  a  vessel  in  every  case  was  to 
lose  her  neutral  character  and  acquire  enemy  character, 
just  as  does  a  subject  of  a  neutral  Power  who  enUsts  in 
the  ranks  of  the  enemy  armed  forces.  But  a  distinc- 
tion had  to  be  made  between  taking  a  direct  part  in  the 
hostihties,  for  instance  rendering  assistance  to  the  enemy 
fleet  during  battle,  and  acts  of  a  piratical  character.  If  a 
neutral  merchantman  ^  without  letters  of  marque  during 

1  See  below,  §  413.  "   See  above,  §§  So,  181,  254. 

*  See  above,  §  89  (1). 


DIFFERENT   KINDS   OF   UNNEUTRAL   SERVICE       595 

war,  and  from  hatred  of  one  of  the  belligerents,  were  to 
attack  and  .sink  his  merchantmen,  she  would  have  to  have 
been  considered,  and  could  therefore  have  been  treated  as, 
a  pirate. 

(2)  There  was,  secondly,  the  case  of  a  neutral  vessel 
which  sailed  under  the  orders,  or  the  control,  of  an  agent 
placed  on  board  by  the  enemy  Government.^  The  pre- 
sence of  such  agent,  and  the  fact  that  the  vessel  sailed 
under  his  orders  or  control,  showed  clearly  that  she  was 
really  for  all  practical  purposes  part  and  parcel  of  the 
enemy  forces. 

(3)  There  was,  thirdly,  the  case  of  a  neutral  vessel  in 
the  exclusive  employment  of  the  enemy.  This  could 
have  occurred  in  two  different  ways  :  either  the  vessel 
might  have  been  rendering  a  specific  service  in  the  exclu- 
sive employment  of  the  enemy,  as,  for  instance,  did  those 
Grerman  merchantmen  during  the  Russo-Japanese  War 
which  acted  as  colhers  for  the  Russian  fleet  en  route  for 
the  Far  East  ;  or  the  vessel  might  be  chartered  by  the 
enemy  so  that  she  was  entirely  at  his  disposal  for  any 
purpose  he  might  choose,  whether  cormected  with  the  war 
or  not. 2 

(4)  There  was,  fourthly  and  lastly,  the  case  of  a  neutral 
merchantman  exclusively  appropriated  at  the  time  either 
to  the  transport  of  enemy  troops,  or  to  the  transmission 
of  inteUigence  for  the  enemy.  This  case  is  different  from 
the  case — provided  for  by  Article  45  (1) — of  a  vessel  on 
a  voyage  specially  undertaken  with  a  view  to  the  carriage 
of  individual  members  of  the  armed  forces  of  the  enemy. 
Whereas  in  that  case  a  vessel  merely  rendered  a  specific 

^  See  The  Thor,  (1914)  1  B.  and  of  Russia  as  reconnoitring   vessels. 

C.  P.  C.  229;   The  Hanametal,  (1914)  The  Australia  (Hurst  and  Bray,  ii. 

1  B.  and  C.  P.  C.  347.  p.    373),    an   American    vessel,    was 

condemned  for  having  been  chartered 

-  Three  cases  of  interest  occuiTed  by  the  Russian  Government  for  the 

in  1905,  during  the  Russo-Japanese  carriage    of    cargo    and     ha%-ing    a 

War.       The    Indxi-'^trie    (Takahashi,  Russian  oflBcial   on   board. — During 

p.  732 ;  Hurst  and  Bray,  ii.  p.  323),  the  World  War  the  interesting  case 

a  German  vessel,  and  a  French  vessel,  of    The   Zambesi,    (1914)    1    B.    and 

The  Quang-nam  (Takahashi,  p.  735  ;  0.  P.  C.  358,  occurred,  but  she  was  a 

Hurst  and  Bray,   ii.    p.   343),   were  ship  belonging  to  one  belligerent  and 

condeniiiod  for  being  in  the  employ  rendering  service  to  another. 


596  UNNEUTRAL   SERVICE 

service,  iii  this  case  the  vessel  is  for  the  time  being  wholly 
and  continuously  devoted  to  the  rendering  of  unneutral 
service.  For  the  time  being  she  is,  therefore,  actually 
part  and  parcel  of  the  enemy  marine.  For  this  reason  she 
was  considered  to  have  lost  her  neutral  character,  even  if, 
at  the  moment  an  enemy  cruiser  searched  her,  she  was 
engaged  neither  in  the  transport  of  troops  nor  in  the  trans- 
mission of  inteUigence.  And  it  made  no  difference,  whether 
the  vessel  was  engaged  by  the  enemy  and  paid  for  the 
transport  of  troops  or  the  transmission  of  intelligence,^ 
or  whether  she  rendered  the  service  ^  gratuitously. 

However,  the  provisions  of  the  Declaration  of  London 
have  not  secured  ratii&cation,  and  are  therefore  not 
legally  binding. 


II 

CONSEQUENCES  OF  UNNEUTRAL  SERVICE 

See  the  literature  quoted  above  at  the  commencement  of  §  407. 

Capture  §  411.  According  to  customary  rules  of  International 
neut^ri  -'^^^'  adopted  also  in  the  unratified  Declaration  of 
Service.  Loudou,  a  ucutral  vessel  may  be  captured  if  visit  or 
search  estabhshes  the  fact,  or  arouses  grave  suspicion, 
that  she  is  rendering  unneutral  service  to  the  enemy. 
Such  capture  may  take  place  anywhere  on  the  open 
sea  or  in  the  territorial  maritime  belt  of  either  belh- 
gerent. 

Mail  steamers  are,  in  principle,  not  exempt  from 
capture  for  unneutral  service.  Although,  according 
to  Article  1  of  Convention  xi.,  the  postal  correspond- 
ence of  belligerents  and  neutrals,  whether  official  or 

^  During     the    World    War    the  Austrians. 

Italian  Prize  Court   condemned  an  "  As  regards  the  meaning  of  the 

Albanian  vessel,  La  Bella  Scutarina,  term    transmission    of    intelligence, 

for  transmitting  intelligence  to  the  see  above,  §  409. 


CONSEQUENCES   OF  UNNEUTRAL  SERVICE      ^    597 

private  in  character,  found  on  board  a  vessel  on  the 
sea  is  inviolable,^  and  a  vessel  may  never  therefore  be 
considered  to  be  rendering  unneutral  service  by  carry- 
ing amongst  her  postal  correspondence  despatches 
containing  intelhgence  for  the  enemy,  a  mail  steamer 
is  nevertheless  ^  not  exempt  from  the  laws  and  customs 
of  naval  war  respecting  neutral  merchantmen.  A 
mail-boat  is,  therefore,  exposed  as  much  as  any  other 
merchantman  to  capture  for  rendering  unneutral 
service. 

Capture  is  allowed  only  so  long  as  the  vessel  is  in 
delicto,  i.e.  during  the  time  in  which  she  is  rendering 
unneutral  service  or  is  being  pursued  for  having  done  so. 

§  412.  According  to   the  practice  prevaihng  before  Penalty 
the   Naval   Conference   of   London,   a   neutral   vessel  neutral 
captured  for  carriage  of  persons  or  despatches  in  the  s^^^ce- 
service    of   the    enemy  could  be  confiscated.     More- 
over, according  to  British  ^  practice,  such  part  of  the 
cargo  as  belonged  to  the  owner  of  the  vessel  was  hke- 
wise  confiscated.^    If  the  vessel  was  not  found  guilty 
of  carrying  persons  or  despatches  in  the  service  of  the 
enemy,  and  was  not  therefore  condemned,  the  Govern- 
ment of  the  captor  could  nevertheless  detain  the  persons 
as  prisoners  of  war  and  confiscate  the  despatches,  if 
they  were  of  such  a  character  as  would  have  made  a 
vessel  which  was  cognisant  of  their  character  Hable  to 
punishment  for  transporting  them  for  the  enemy. 

The  unratified  Declaration  of  London  recognised  these 
three  rules.  Articles  45  and  46  declared  any  vessel  render- 
ing any  kind  of  unneutral  service  to  the  enemy  Hable  to 
confiscation,  and  also  such  part  of  the  cargo  as  belonged 
to  the  owner  of  the  confiscated  vessel.     And  Article   47 

»  See  above,  §§  191,  319.  440.     See  Holland,  Prize  Law,  §§  95 

'  See  Article  2.  and  105. 

3   The  Friendship,  (1807)  G  C.  Rob.  *  See,  however,  The  Hope,  (1808)  6 

420;   The  Atalanta,  (1808)  6  C.  Rob.  C.  Rob.  463  n. 


598  UNNEUTRAL   SERVICE 

provided  that,  although  a  neutral  vessel  might  not  be 
liable  to  condemnation,  the  capturing  State  might  never- 
theless detain  as  prisoners  of  war  any  members  of  the 
armed  forces  of  the  enemy  who  were  found  on  board. 
The  case  of  despatches  found  on  board  was  not  mentioned 
by  Article  47. 

The  mere  fact  that  a  neutral  vessel  is  rendering  unneutral 
service  is  not  sufficient  for  her  condemnation  ;  in  addi- 
tion mens  rea  is  required.  Now  as  regards  the  four  kinds 
of  unneutral  service  which  create  enemy  character,  mens 
rea  is  obviously  always  in  existence,  and  therefore  always 
presumed  to  be  present.  For  this  reason  Article  46,  in 
contradistinction  to  Article  45,  did  not  refer  to  the  know- 
ledge of  the  vessel  of  the  outbreak  of  hostilities.  But  as 
regards  the  other  cases  of  unneutral  service.  Article  45 
provided  that  the  vessel  might  not  be  confiscated  if  the 
vessel  was  encountered  at  sea  while  unaware  of  the  out- 
break of  hostihties,  or  if  the  master,  after  becoming  aware 
of  the  outbreak  of  hostilities,  had  had  no  opportunity  of 
disembarking  the  passengers  concerned.  On  the  other 
hand,  a  vessel  was  to  be  deemed,  according  to  Article  45, 
to  be  aware  of  the  existence  of  a  state  of  war  if  she  had 
left  an  enemy  port  subsequent  to  the  outbreak  of  hostihties, 
or  a  neutral  port  subsequent  to  the  notification  of  the 
outbreak  of  hostihties  to  the  Power  to  which  such  port 
belonged,  provided  that  such  notification  was  made  in 
sufficient  time. 

Although  the  unratified  Declaration  of  London  meted 
out  the  same  punishment  for  the  several  kinds  of  unneutral 
service  which  it  enumerated,  it  did  make  a  distinction 
with  regard  to  the  treatment  in  other  respects  of  vessels 
captured  for  rendering  unneutral  service. 

Article  45  provided  for  a  neutral  vessel  captured  for 
having  rendered  either  of  the  two  kinds  of  unneutral  service 
mentioned  in  it  treatment  in  a  general  way  the  same  as 
that  of  a  neutral  vessel  captured  for  the  carriage  of  con- 
traband. The  vessel  did  not  lose  her  neutral  character, 
and   had   under  all   circumstances   and   conditions   to   be 


CONSEQUENCES  OF  UNNEUTRAL  SERVICE  599 

taken  before  a  Prize  Court,  unless — see  Article  49 — to  take 
her  into  a  port  of  the  capturing  State  would  have  involved 
danger  to  the  safety  of  the  capturing  vessel  or  to  the  success 
of  the  miUtary  operations  in  which  she  was  engaged  at 
the  time.  And  an  appeal  from  the  national  Prize  Courts 
was  to  lie  to  the  proposed  International  Prize  Court. 

Article  46,  on  the  other  hand,  provided  treatment  for 
a  vessel  captured  for  having  rendered  any  of  the  four  kinds 
of  unneutral  service  enumerated  in  it  which,  in  a  general 
way,  was  the  same  as  that  of  a  captured  enemy  merchant- 
man. Such  a  vessel  acquired  enemy  character.  Accord- 
ingly,^  all  enemy  goods  on  the  vessel  might  be  seiaed,  all 
goods  on  board  were  to  be  presumed  to  be  enemy  goods, 
and  the  owners  of  neutral  goods  on  board  were  to  have 
to  prove  their  neutral  character.  Further,  the  rules  of 
Articles  48  and  49  concerning  the  destruction  of  neutral 
vessels  were  not  to  apply.  Again,  no  appeal  was  to  lie 
from  the  national  Prize  Courts  to  the  Litemational  Prize 
Court  by  the  owner  of  the  ship  except  concerning  the  one 
question,  whether  the  act  of  which  she  was  accused  had 
the  character  of  unneutral  service  .^ 

However,  the  rules  of  the  declaration  are  not  legally 
binding,  and  the  old  customary  rules  are  still  appHc- 
able. 

§413.  According    to    the    British^    and    American  Seizure  of 
practice,  as  well  as  that  of  some  other  States,  which  persons 
prevailed  prior  to  the  Naval  Conference  of  London,  ^"?  P^^* 

r  r  '  patches 

whenever  a  neutral  vessel  was  stopped  for  carrying  without 
persons  or  despatches  for  the  enemy,  these  could  not  vessel, 
be  seized  unless  the  vessel  was  seized  at  the  same  time. 
The  release,  in  1861,  during  the  American  Civil  War, 
of  Messrs.  Mason  ^  and  Shdell,  who  had  been  forcibly 

*  See  above,  g  89.  question    whether    the    owTiers    of 

*  The  question  whether,  if  the  neutral  goods  on  a  destroyed  enemy 
vessel  was  destroyed  by  the  captor,  merchantman  have  a  claim  to  com- 
the  innocent  owners  of  the  neutral  pensation  ;  see  above,  §  194. 

goods  on  board    might  claim  com-  j  ^      Holland    PH'e  Law   §  104 

pensation,    would    have    had   to   be  ^^®  Holland,  rri.e  haw,  5  1U4. 

decided    in    the    same    way   as   the  *  See  above,  §  408  n. 


600  UNNEUTEAL   SERVICE 

taken  off  the  Trent,  while  the  ship  herself  was  allowed 
to  continue  her  voyage,  was  based  by  the  United  States 
on  the  fact  that  the  seizure  of  these  men  without  the 
seizure  of  the  vessel  was  illegal. 

Since,  according  to  the  unratified  Declaration  of  London, 
a  neutral  vessel  rendering  unneutral  service  of  any  kind 
was  hable  to  be  confiscated,  it  is  evident  that  in  such  a 
case  the  enemy  persons  and  despatches  concerned  might 
not  be  taken  off  the  vessel  unless  the  vessel  herself  was 
seized  and  brought  into  a  port  of  a  Prize  Court.  How- 
ever, Article  47  provided  that  any  member  of  the  armed 
forces  of  the  enemy  found  on  board  a  neutral  merchant 
vessel  might  be  taken  off  and  made  a  prisoner  of  war, 
although  there  might  be  no  ground  for  the  capture  of  the 
vessel.  Therefore,  if  a  vessel  carried  individual  members 
of  the  armed  forces  of  the  enemy  in  the  ordinary  course 
of  her  voyage,^  or  if  she  transported  a  mihtary  detachment 
of  the  enemy  and  the  like  without  being  aware  of  the  out- 
break of  hostihties,  the  members  of  the  armed  forces  of 
the  enemy  on  board  might  be  seized,  although  the  vessel 
herself  might  not  be  seized,  as  she  was  not  rendering  un- 
neutral service. 

The  Declaration  of  London  did  not  mention  the  case  of 
enemy  despatches  embodying  intelligence  found  on  board 

^  Accordingly,   in  January  1912,  posed  to  be  Turkish  officers  on  their 

during  the  Turco-Italian  War,  the  way  to  the  theatre  of  war,  had  been 

Italian  gunboat  Volturno,  after  hav-  forciblytakenofi'and  made  prisoners, 

ing  overhauled,  in  the  Red  Sea,  the  On   the   protest  of   France,   it  was 

British  steamer  Africa  going  from  agreed  between  the  parties  that  the 

Hodeida  to  Aden,  took  ofl'and  made  case  should  be  settled  by  an  arbitral 

prisoners  of  war  Colonel  Riza  Bey  award  of   the  Permanent  Court  of 

and  eleven    other    Turkish   officers.  Arbitration  at  the  Hague,  Italy  as- 

Although  the  Declaration  of  London  serting  that  she  had  only  acted  in 

was  not  ratified  by  Great  Britain,  accordance  with  Article   47  of   the 

she  did  not  protest.      The  case  of  Declaration  of  London.     The  court, 

The    Manouha    ought    likewise    to  on  May   6,    1913,    gave   its    award 

be    mentioned    here.      This   French  in    favour   of    France,    because    the 

steamer,  which  plied  between  Mar-  commander  of  the  Agordat  did  not 

seilles  and  Tunis,  was  captured  on  demand    from    the     Manouha     the 

January  18,  1912,  by  the  Agordat,  handing  over  of  the  Turks,  but  cap- 

an    Italian    torpedo    boat    in    the  tured  her.     See  Rapisardi-Mirabelli 

Mediterranean,  brought  to  Cagliari,  in    R.I.,   2nd   Ser.    xv.    (1913),    pp. 

and  then  released  after  twentj'-nine  135-138,  and  Ruz6  in  i?./.,  2nd  Ser. 

Turkish  passengers,  who  were  sup-  xvi.  (1914),  pp.  128-136, 


CONSEQUENCES   OF   UNNEUTRAL   SERVICE  601 

such  a  neutral  vessel  as  might  not  herself  be  captured  for 
such  carriage.  For  instance,  if  a  mail  steamer,  pursuing 
her  ordinary  course,  carried  a  despatch  of  the  enemy, 
not  in  her  mail-bags,  but  separately  (in  which  case,  accord- 
ing to  Article  45,  the  vessel  was  not  Uable  to  seizure), 
might  despatches  be  seized  without  the  seizure  of  the 
vessel  ?  The  question  ought  to  be  answered  in  the 
affirmative. 

However,  the  rules  of  the  Declaration  of  London 
are  not  legally  binding. 

Quite  different  from  the  case  of  the  seizure  of  such 
enemy  persons  and  despatches  as  a  vessel  cannot  carry 
without  exposing  herself  to  pmxishment,  is  the  case  ^ 
where  a  vessel  has  such  enemy  persons  and  despatches 
on  board  as  she  is  allowed  to  carry,  but  a  belligerent 
believes  it  to  be  necessary  in  the  interest  of  self-defence 
to  seize  them.  Since  necessity  in  the  interest  of  self- 
preservation  is,  according  to  International  Law,  an 
excuse  ^  for  an  illegal  act,  if  such  act  is  necessary  in 
self-defence,  a  belligerent  may  seize  such  persons  and 
despatches,  provided  that  their  seizure  is  not  merely 
desirable,  but  absolutely  necessary^  in  the  interest  of 
self-defence.  For  instance,  seizure  of  an  enemy  ambas- 
sador on  board  a  neutral  vessel  would  be  justifiable  if 
he  was  on  the  way  to  submit  to  a  neutral  a  draft  treaty 
of  alliance  injurious  to  the  other  belligerent. 

§  413a.  Different  too  is  the  case  where  a  vessel  has  Seizureof 
enemy  persons  on  board  whom  she  is  allowed  to  carry,  Re^™^ 
but  a  beUigerent  orders  them  to  be  seized  as  a  measure  se^vists 

o  during 

of    reprisals.     Notable    cases    of    this    kind    occurred  the  World 
during  the  World  War.     On  November  1,  1914,  the 
British  Foreign  Office  gave   notice  that  '  In  view  of 
the  action  taken  by  the  German  forces  in   Belgium 
and  France  of  removing  as  prisoners  of  war  all  persons 

*  See  Hall,  §  253  ;   Rivier,  ii.   p.  ^  See  above,  vol.  i.  §  129. 

390.  »  See  above,  vol.  i.  §  130. 


602  UNNEUTKAL    SERVICE 

who  are  liable  to  military  service,  His  Majesty's  Govern- 
ment have  given  instructions  that  all  enemy  reservists 
on  neutral  vessels  should  be  made  prisoners  of  war/ 
The  French  Government  pubhshed  a  similar  notice. 
In  consequence,  all  enemy  subjects  of  mihtary  age 
found  on  board  neutral  vessels  on  the  high  seas  were 
taken  off  by  the  cruisers  of  the  Alhes  and  made  prisoners 
of  war.^  It  is  asserted  that  sixty-four  neutral  vessels 
were  thus  interfered  with,  and  that  about  3500  subjects 
of  the  Central  Powers  were  taken  off  them  and  made 
prisoners  of  war.  To  mention  a  few  examples :  ^  the 
Itahan  steamer  Ancona,  saihng  from  New  York  to 
Italy,  was  held  up  by  an  Enghsh  cruiser  near  Gibraltar, 
and  seventy  German  passengers  were  removed  and 
taken  to  Gibraltar  as  prisoners  of  war.  The  Dutch 
liner  New  Amsterdam  was  stopped  by  a  French  cruiser 
on  the  high  seas  off  Brest,  and  400  Germans  and  250 
Austrians  were  removed  and  made  prisoners  of  war. 
Of  the  protests  of  the  neutral  Governments  affected, 
only  those  of  the  United  States  of  America  were  of 
any  avail.  When  the  American  steamer  Windber, 
two  days  after  having  left  Colon,  was  stopped  in 
November  1914  by  the  French  cruiser  Conde  and 
August  Piepenbrink,  a  German  waiter,  was  taken  off, 
brought  to  Ejngston  in  Jamaica,  and  detained  as  a 
prisoner  of  war,  the  United  States  protested,  and 
after  some  correspondence,  the  French  and  British 
Governments  consented  to  set  him  free  *  as  a  friendly 
act  while  reserving  the  question  of  principle  involved.'  ^ 
Again  when,  in  February  1916,  the  American  steam- 
ship China  was  stopped  by  the  British  cruiser  Laurentic 
on  the  high  seas  about  ten  miles  from  the  entrance  to 
the  Yang-tze-kiang  and  twenty-eight  Germans,  eight 

^  The  legality  of  this  measure  of  539. 

reprisals  by  the  Allies  may  well  be  ^  See    A. J.,    ix.    (1915),    Special 

doubted.     But  see  Wehberg,  p.  315.  Supplement,  pp.  353-360,  and  above, 

*  For  others,    see    Garner,    ii.    §  vol.  i.  §  313  n. 


CONSEQUENCES  OF   UNNEUTRAL  SERVICE         '603 

Austriaus,  and  two  Turks  were  taken  off,  carried 
to  Hong-Koug,  and  there  detained  as  prisoners  of 
war,  the  United  States  Government  protested,  and 
after  some  correspondence  the  prisoners  were  set 
free,  although  Great  Britain  reserved  the  question 
of  principle.^ 

'  See  A.J.,  X.  (1916),  Special  Supplement,  pp.  427-432. 


CHAPTER  YI 

VISITATION,   CAPTURE,   AND   TRIAL   OF 
NEUTRAL   VESSELS 

I 

VISITATION 

Bynkershoek,  Quaestiones  Juris  puUici,  i.  c.  14 — Vattel,  iii.  §  114 — Hall,  §§ 
270-276— Manning,  pp.  433-460— Phillimore,  iii.  §§  322-344— Twiss,  ii. 
§§  91-97— Halleck,  ii.  pp.  271-304— Taylor,  §§  685-689— Wharton,  iii. 
§§  325,  346— Wheaton,  §§  524-537  —  Moore,  vii.  §§  1199-1205  — 
Hershey,  Nos.  516-520— Bluntschli,  §§  819-826— Heflfter,  §§  167-171— 
Geffcken  in  Holtztndorff,  iv.  pp.  773-781— Kliiber,  §§  293-294— G.  F. 
Martens,  ii.  §§  317,  321— Ullmann,  §  195— Bonfils,  Nos.  1674-1691— 
Despagnet,  Nos.  717-721— Rivier,  ii.  pp.  423-426— Nys,  iii.  pp.  679-690 
— Calvo,  V.  §§  2939-2991— Fiore,  iii.  Nos.  1630-1641,  and  Code,  Nos. 
1876-1900— Martens,  ii.  §  137— Kleen,  ii.  §§  185-199,  209— Gessner,  pp. 
278-332— Boeck,  Nos.  767-769— Dupuis,  Nos.  239-252,  and  Guerre,  Nos. 
189-204— Bernsten,  §  11— Schramm,  §§  13-14— Nippold,  ii.  §  35— Perels, 
§§  52-55— Testa,  pp.  230-242— Ortolan,  ii.  pp.  214-245— Hautefeuille, 
iii.  pp.  1-298— Holland,  Prize  Law,  §§  1-17,  155-230— U.S.  Naval  War 
Code,  Articles  30-33 — Schlegel,  8ur  la  Visile  des  Vaisseaux  neutres  «ot« 
Convoi  (1800) — Mirbach,  Die  volkerrechllichen  Grundsdlze  des  Durch- 
suchungsrechts  zur  See  (1903) — Loewenthal,  Das  Untersuchungsrecht  des 
internationalen  Seerechts  in  Krieg  und  Frieden  (1905) — Atherley-Jones, 
Commerce  in  War  (1907),  pp.  299-360 — Hirschmann,  Das  inlemalionale 
Prisenrechl  (1912),  §§  33-34— Wehberg,  §  7— Garner,  ii.  §  500— Duboc 
in  E.G.,  iv.  (1897),  pp.  382-403 — See  also  the  monographs  quoted  above 
at  the  commencement  of  §  391,  Bulmerincq's  articles  on  Le  Droit  des 
Prises  marilimes  in  R.I.,  x. -xiii.  (1878-1881),  and  the  General  Report 
presented  to  the  International  Naval  Conference  of  London  on  behalf 
of  the  Drafting  Committee,  Article  63,  Cd.  4554,  p.  63. 

Concep-        §  414.  The  right  of  visitation  ^  is  the  right  of  belH- 
R?gh?of   gerents  to  visit  and,  if  need  be,  search  neutral  merchant- 

^  This  right  of  visitation  is  not  an  service.  It  is  a  righl,  in  contradis- 
independent  right,  but  is  involved  in  tinction  to  the  duiy,  of  every  bel- 
the  right  of  either  belligerent — see  ligerent  to  visit  an  enemy  merchant- 
above,  §  314  —  to  pvmish  neutral  man  if  he  desires  to  capture  her. 
vessels  breaking  blockade,  carrying  See  Oppenheim  inZ.V.,  viii.  (1914), 
contraband,  and  rendering  unneutral  pp.  154-169. 
e04 


tion. 


VISITATION  605 

men  for  the  purpose  of  ascertaining  whether  these 
vessels  really  belong  to  the  merchant  marine  of  neutrals, 
and,  if  this  is  found  to  be  the  case,  whether  they  are 
attempting  to  break  blockade,  or  carry  contraband, 
or  render  unneutral  service  to  the  enemy.  The  right 
of  visit  and  search  was  already  mentioned  in  the  Con- 
solato  del  Mare,  and  although  it  has  often  ^  been  con- 
tested, its  raison  d'etre  is  so  obvious  that  it  has  long 
been  universally  recognised  in  practice.  It  is  indeed 
the  only  means  by  which  beUigerents  are  able  to  ascertain 
whether  neutral  merchantmen  intend  to  bring  assist- 
ance to  the  enemy  and  to  render  him  unneutral 
services.^ 

§  415.  The  right  of  visit  and  search  may  be  exercised  Right  of 
by  all  warships^  and  mihtary  aircraft  of  belhgerents."*  tion,  by 
But  since  it  is  a  belhgerent  right,  it  may,  of  course,  ^Jg™'and 
only  be  exercised  after  the  outbreak,  and  before  the  where 
end,  of  war.     The  right  of  visitation  which  men-of-war  ^^^^° 
of  all  nations  have  in  time  of  peace  in  a  case  of  suspicion 
of   piracy  ^   has   nothing   to   do   with   the   belhgerent 
right   of   visit   and   search.     But   since   an   armistice 
does  not  bring  war  to  an  end,  and  since  the  exercise 
of  the  right  of  visitation  is  not  an  act  of  warfare,  it 
may  be  exercised  during  the  time  of  a  partial  or  general 
armistice.®    The  region  where  the  right  may  be  exercised 

^  See,  for  instance,  Hiibner,  Z)e  la  German   prize    crew  on   board   cap- 

Saisie  des  Bdtiments  netUrts  (1759),  tured  the  Koningin  Emma,  a  Dutch 

i.  p.  227.  steam  trawler,  which  stranded  while 

*  A  '  Reglement  international  des  being    taken    to    a    German     port, 

Prises    maritimes'   was   adopted   at  the   Dutch   Government    protested. 

Heidelberg  in  1887  by  the  Institute  The     German     Government     made 

of    International    Law,    §§    1-29   of  an   apology,    and   compensated    the 

which    regulate    visit    and    search.  owners  of  the  Koningin  Evnna  for 

See  Annuaire,  ix.  (1888),  p.  218.  the  loss  of  their  vessel. 

'  A   captured   neutral    merchant-  *  In  former  times  also  by  priva- 

man  does  not  become  a  commissioned  teers. 

vessel  by  ha^^ng  a  prize  crew  on  ^  See  above,  vol.  i.  §  266  (2). 
board,  and  has  no  right  to  visit,  *  But  this  is  not  universally  re- 
search, and  capture  other  neutral  cognised.  Thus  Hautefeuille,  iii. 
merchantmen.  When,  therefore,  in  p.  91,  maintains  that  during  a 
May  1917  during  the  World  War,  a  general  armistice  the  right  of  visita- 
captured     Dutch    trawler    with     a  tion    may    not    be    exercised,    and 


606     VISITATION,    CAPTURE,    ETC.,    OF   NEUTRAL  VESSELS 

is  the  maritime  territorial  belt  of  either  belligerent, 
and  the  open  sea,  but  not  the  maritime  territorial  belt 
of  neutrals.  Whether  the  part  of  the  open  sea  in  which 
a  belhgerent  man-of-war  meets  with  a  neutral  merchant- 
man is  near  or  far  away  from  that  part  of  the  world 
where  hostihties  are  actually  taking  place  makes  no 
difference,  so  long  as  there  is  suspicion  against  the 
vessel.  The  question  whether  the  men-of-war  of  a 
belhgerent  may  exercise  the  right  of  visitation  in  the 
maritime  territorial  belt  of  an  ally  is  solely  one  between 
the  belhgerent  and  his  ally,  provided  that  the  latter  is 
already  a  belligerent. 
Only  §  416.  During    the   nineteenth    century,    it   became 

Vessels     Universally  recognised  that  neutral  men-of-war  are  not 
may  be     objccts  of  the  right  of  visit  and  search  of  belligerents.^ 
And  the  same  is  vahd  regarding  public  neutral  vessels 
which  sail  in  the  service  of  armed  forces,  such  as  trans- 
port  vessels,   for  instance.    Doubt   exists   as   to   the 
position  of  public  neutral  vessels  not  saihng  in  the  service 
of  armed  forces,  e.g.  mail-boats  belonging  to  a  neutral 
State.     It  is  asserted  ^  that,  if  commanded  by  an  officer 
of  the  Navy,  they  must  be  treated  in  the  same  way 
as  men-of-war,  but  that  it  is  desirable  to  ask  the  com- 
manders to  give  their  word  of  honour  assuring  the 
absence  of  contraband  and  unneutral  service. 
Vessels         §  ^l^.  Swcdcu  iu  1653,  during  war  between  Great 
under       Britain  and  the  Netherlands,  claimed  ^  that  the  belh- 

Convoy.  ,  ,     .        .    .  .... 

gerents  ought  to  waive  their  rights  of  visitation  over 
Swedish  merchantmen  if  they  sailed  under  the  convoy 

§  5  of  the  '  Reglement  international  it  ceases  '  avec  les  pr^Iiminaires  de 

des  Prises  maritimes' of  the  Institute  la  paix.'     See  below,  §  436. 

of   International  Law   took   up  the  i  i^  iovmer  times  Great   Britain 

same  attitude.                             r      .  ..  tried  to  extend  visitation  to  neutral 

In  strict   law  the  right  of   visit  men-of-war.     See  Manning,  p.  455. 

and  search  may  be  exercised  even  .or                         f^ 

after  the  conclusion  of  peace  before  See,    for    instance,   Gessner,    p. 

the    treaty    of    peace    is    ratified,  297,  and  Perels,  §  52,  iv. 

though    the    above-mentioned    §   5  '  See  Robinson,  Collectanea  mari- 

of    the    'R^glement'   declares   that  <inia  (1801),  pp.  145-157. 


VISITATION  607 

of  a  Swedish  man-of-war  whose  coininaiider  asserted 
that  there  was  no  contraband  on  board  the  convoyed 
vessels.  The  Peace  of  Westminster  in  1654  brought 
this  war  to  an  end,  and  in  1756  the  Netherlands,  then 
neutral,  claimed  the  right  of  convoy.  But  it  was 
not  until  the  last  quarter  of  the  eighteenth  century 
that  the  right  of  convoy  was  more  and  more  insisted 
upon  by  Continental  neutrals.  During  the  American 
War  of  Independence  in  1780,  the  Netherlands  again 
claimed  it,  and  when  they  themselves  waged  war 
against  Great  Britain  in  1781,  they  ordered  their  men- 
of-war  and  privateers  to  respect  it.  Between  1780 
and  1800,  treaties  were  concluded,  in  which  Russia, 
Austria,  Prussia,  Denmark,  Sweden,  France,  the  United 
States  of  America,  and  other  States  recognised  the 
right.  But  Great  Britain  always  refused  to  do  so, 
and,  in  July  1800,  the  action  of  a  British  squadron  in 
captujing  a  Danish  man-of-war  and  her  convoy  of  six 
merchantmen  for  resistance  to  visitation  called  the 
Second  Armed  Neutrahty  into  existence.  Yet  Great 
Britain  still  resisted.  It  was  only  to  Russia  ^  that  by 
Article  4  of  the  '  Maritime  Convention '  of  St.  Peters- 
burg of  June  17,  1801,  she  conceded  that  vessels 
under  convoy  should  not  be  visited  by  privateers, 
and  though  during  the  Crimean  War  she  waived  her 
claim  on  account  of  her  naval  co-operation  with 
France  (the  latter  recognising  the  right  of  convoy 
on  principle),  she  waived  it  only  for  that  particular 
war.  Although  during  the  nineteenth  century  more 
and  more  treaties  stipulating  the  right  of  convoy  were 
concluded,  it  was  not  mentioned  in  the  Declaration 
of  Paris  of  1856,  and  Great  Britain  refused  to  re- 
cognise it  throughout   the    century.     However,  Great 

^  But  this  concession  extended  to       to    the    Maritime    Convention     on 
Denmark    and  Sweden,  since    these        October  23,  1801. 
Powers   (see   above,  §  290)   acceded 


608     VISITATION,    CAPTURE,    ETC.,    OF   NEUTRAL  VESSELS 

Britain  abandoned  her  opposition  at  the  Naval  Con- 
ference of  London  of  1908-1909,  and  the  mxratified 
Declaration  of  London  proposed  to  settle  the  matter 
by  Articles  61  and  62  in  the  following  way  : — 

Neutral  vessels  under  the  convoy  of  a  man-of-war  flying 
the  same  flag  were  to  be  exempt  from  search,  and  might 
not  be  visited  if  the  commander  of  the  convoy,  at  the  request 
of  the  commander  of  the  belligerent  cruiser  which  desired 
to  visit  them,  gave,  in  writing,  all  the  information  as  to 
the  character  of  the  convoyed  vessels  and  their  cargoes 
that  could  be  obtained  by  search.  Should  the  commander 
of  the  belligerent  man-of-war  have  reason  to  suspect  that 
the  confidence  of  the  commander  of  the  convoy  had  been 
abused,  he  might  not  himself  resort  to  visit  and  search,  but 
had  to  communicate  with  the  commander  of  the  convoy. 
The  latter  had  to  investigate  the  matter,  and  record  the 
result  of  his  investigation  in  a  report,  a  copy  of  which  was 
to  be  given  to  the  commander  of  the  beUigerent  cruiser. 
If,  in  the  opinion  of  the  commander  of  the  convoy,  the 
facts  stated  in  the  report  justified  the  capture  of  one  or 
more  of  the  convoyed  vessels,  he  was  to  withdraw  protec- 
tion from  the  offending  vessels,  and  the  belhgerent  cruiser 
might  then  capture  them. 

In  case  a  difference  of  opinion  arose  between  the  com- 
mander of  the  convoy  and  the  commander  of  the  beUi- 
gerent cruiser — ^for  instance,  with  regard  to  the  question 
whether  certain  goods  were  absolute  or  conditional  contra- 
band or  whether  the  port  of  destination  of  a  convoyed 
vessel  was  an  ordinary  commercial  port  or  a  port  which 
served  as  a  base  of  supply  for  the  armed  forces  of  the 
enemy  and  the  hke — the  commander  of  the  beUigerent 
cruiser  was  to  have  no  power  of  overruhng  the  decision 
of  the  commander  of  the  convoy.  He  could  only  protest 
and  report  the  case  to  his  Government,  which  would  have 
had  to  settle  the  matter  by  means  of  diplomacy.^ 

^  Had  the  Declaration  of  London  belligerent  military  aircraft  meeting 
been  ratified,  its  rules  concerning  convoyed  neutral  merchantmen  at 
convoy  would  also  have  applied  to       sea. 


VISITATION  G09 

However,  the  declaration  has  not  been  ratified,  and 
it  is  apparent  from  the  attitude  of  the  British  Govern- 
ment during  the  World  War  that  it  is  no  longer  pre- 
pared to  give  effect  to  the  concession  made  at  the 
Naval  Conference  of  London  and  recognise  the  right 
of  convoy.  Thus,  when  the  Dutch  Government 
announced  in  1918  that  a  convoy  would  be  despatched 
to  the  Dutch  East  Indies  carrying  Government  pas- 
sengers and  goods,  the  British  Government  expressly 
refused  to  recognise  the  right  of  convoy,  insisted  upon 
the  right  to  visit  and  search  neutral  merchantmen, 
even  if  convoyed,  and  only  agreed  to  abstain  from 
exercising  that  right  on  that  occasion  upon  special 
conditions  which  the  Dutch  Government  accepted.^ 

§  418.  There    are    no    rules    of    International    Law  No 
which  lay  down  all  the  details  of  the  formahties  of  Ruies^*^^ 
the  mode  of  visitation.     A  great  many  treaties  regulate  regarding 
them  as  between  the  parties,  for  many  of  which  Article  visita- 
17  of  the  Peace  Treaty  of  the  PjTenees  of  1659  has  ^'°°- 
served  as  a  model ;    and  all  maritime  nations  have 
given  instructions  to  their  men-of-war  regarding  them. 
Thereby  uniform  formahties  are  practised  with  regard 
to  many  points  ;    but  regarding  others  the  practice  of 
the  several  States  differs. 

§  419.  A  man-of-war  which  wishes  to  visit  a  neutral  stopping 
vessel  must  stop  her,  or  make  her  bring  to.     Although  fo^^^g^^^^ 
the   chasing   of   vessels   may   take   place   under   false  Purpose 
colours,  the  right  colours  must  be  shown  when  vessels  tion. 
are  stopped.^    The  order  for  stopping  can  be  given  ^ 
by  haihng  or  by  firing  one  or  two  blank  cartridges  from 
the  so-called  affii-ming  gun,  and,  if  necessary,  by  firing 
a  shot  across  the  bows  of  the  vessel.'*    If  nevertheless 
the  vessel  does  not  bring  to,  the  man-of-war  is  justified 

^  Pari.     Papers,   Misc.,  No.     13           *  On    emergency    measures    with 

(1918),  Cd.  9028.  regard   to  visitation  resorted  to  by 

^  See  above,  §  211.  Great    Britain    during    the    World 

*  See  above,  vol  i.  §  268.  War,  see  Hall,  §  273,  p.  798,  n.  2. 

VOL.  n.  2q 


610     VISITATION,    CAPTURE,    ETC.,    OF  NEUTRAL  VESSELS 

in  using  force  to  compel  her  to  bring  to.  Once  the 
vessel  has  been  brought  to,  the  man-of-war  also  brings 
to,  keeping  a  reasonable  distance.  With  regard  to 
this  distance,  treaties  very  often  stipulate  either  the 
range  of  a  cannon  shot,  or  half  such  width,  or  even  a 
range  beyond  a  cannon  shot ;  but  all  this  is  totally 
impracticable.^  The  distance  must  vary  according  to 
the  requirements  of  the  case,  and  according  to  wind 
and  weather. 

The  rules  concerning  the  stopping  of  vessels  for  visi- 
tation apply  also  to  visitation  by  belhgerent  aircraft. 
The  order  can  in  that  case  be  given  by  hailing,  or  by 
some  other  sign. 
Visit.  §  420.  The  vessel,  having  been  stopped  or  brought 

to,  is  visited  ^  by  one  or  two  officers  sent  in  a  boat  from 
the  man-of-war.  These  officers  examine  the  papers  of 
the  vessel  to  ascertain  her  nationahty,  the  character 
of  her  cargo  and  passengers,  and  the  ports  from  and  to 
which  she  is  sailing.  Instead  of  visiting  the  merchant- 
man and  inspecting  her  papers  on  board,  the  practice 
is  followed,  by  the  men-of-war  of  some  States,  of 
summoning  the  master  of  the  merchantman  with  his 
papers  on  board  the  former  and  examining  the  papers 
there. 

If  everything  is  found  in  order  and  there  is  no  suspi- 
cion of  fraud,  the  vessel  is  allowed  to  continue  her 
course,  a  memorandum  of  the  visit  having  been  entered 
in  her  log-book.  On  the  other  hand,  if  the  inspection 
of  the  papers  shows  that  the  vessel  is  carrying  contra- 
band or  rendering  unneutral  service,  or  that  she  is  for 
some  other  reason  hable  to  capture,  she  is  at  once  seized. 
But  it  may  be  that,  although  ostensibly  everything  is 
in  order,  there  is  nevertheless  grave  suspicion  of  fraud 
against  the  vessel.    In  such  case  she  may  be  searched. 

^  See    Ortolan,    ii.     p.     '220,    and  "  See   above,    vol.    i.    §   268,    and 

Perels,  §  53,  pp.  284,  285.  Holland,  Prize  Law,  §§  195-216. 


VISITATION  611 

§  421.  Search  at  sea  ^  is  effected  ^  by  one  or  two  officers,  Search, 
and,  if  need  be,  a  few  men,  in  presence  of  the  master 
of  the  vessel.     Care  must  be  taken  not  to  damage  the 
vessel  or  the  cargo,  and  no  force  whatever  must  be 
apphed.     No  lock  must  be  forcibly  broken  open  by  the 
search-party ;  the  master  is  to  be  required  to  unlock  it. 
If  he  fails  to  comply  with  the  demand,  he  is  not  to  be 
compelled  to  do  so,  since  his  refusal  to  assist  the  search 
in  general,  or  search  of  a  locked  part  of  the  vessel  or 
of  a  locked  box  in  particular,  is  at  once  sufficient  cause 
for  seizing  the  vessel.     Search  being  completed,  every- 
thing removed  has  to  be  replaced  with  care.     If  the 
search  has  satisfied  the  searching  officers,  and  dispelled 
all  suspicion,  a  memorandum  is  entered  in  the  log- 
book of  the  vessel,  and  she  is  allow^ed  to  continue  her 
voyage.     On   the  other  hand,   if  search  has   brought 
contraband,  or  any  other  cause  for  capture  to  hght, 
the  vessel  is  seized.     But  since  search  can  never  take 
place  so  thoroughly  on  the  sea  as  in  a  harbour,  it  may 
be   that,   although   search   has  disclosed  no   proof   to 
bear  out  the  suspicion,  grave  suspicion  still  remains. 
In  such  a  case  she  may  be  seized  and  brought  into  a 
port  for  the  purpose  of  being  searched  there  as  thor- 
oughly as  possible.     But  the  commander  of  a  man- 
of-war  seizing  a  vessel  in  such  a  case  must  bear  in  mind 
that  full  indemnities  must  be  paid  to  the  vessel  for 
loss  of  time  and  other  losses  sustained  if  finally  she 
is  found  innocent,  and  the  Prize  Court  declares  that 
there  was  no  reasonable  ground  of  suspicion  to  justify 
the  seizure  of  the  vessel.^    Therefore,  after  a  search 


1  As     to     the     general     practice  (No.  2),  (1917)  3  B.  and  C.  P.  C.  87, 

followed   by  the  Allies  during   the  where  it    was  held   that   costs   and 

World  War  of   taking  vessels  into  damages  will  not  be  awarded  M-hen 

port  for  search,  see  below,  §  421a.  the  validity  of  the  seizure  depends 

-  See   above,    vol.    i.    §   269,    and  upon  a  difficult  question  of  law  ;   The 

Holland,  Prize  Law,  §§  217-230.  Bemisse,  (1919)  3  B  and  C.  P.  C.  517  ; 

*   The    Baron    Stjemblad,    (1917)  and    Article   64    of    the    unratified 

3  B.  and  C.  P.  C.  17  ;    The  Higurd  Declaration  of  London. 


612     VISITATION,   CAPTURE,   ETC.,   OF  NEUTRAL   VESSELS 

at  sea  has  brought  nothing  to  Hght  against  the  vessel, 
seizure  should  take  place  only  in  case  of  grave  sus- 
picion. 
Bringing  §  421a.  Duriug  the  World  War,  the  United  States 
into  Port  of  America  complained  that  British  cruisers,  instead  of 
Search  Searching  American  vessels  on  the  high  seas  at  the  time 
of  visit,  made  a  practice  of  taking  them  into  port  for 
search.  The  British  Government  urged  in  justifi- 
cation of  this  procedure  ^  that  the  size  of  the  modern 
hner,  the  great  amount  of  cargo  carried  by  her,  and 
the  elaborate  arrangements  in  vogue  for  conceahng 
the  identity  of  cargoes,  made  it  impossible  to  carry 
out  a  thorough  search  on  the  high  seas,  especially  as 
the  danger  of  attacks  from  enemy  submarines  was  so 
great,  and  '  the  conditions  during  winter  in  the  North 
Atlantic  frequently  render  it  impracticable  for  days 
together  for  a  naval  officer  to  board  a  vessel  on  her 
way  to  Scandinavian  countries.'  The  British  Notes 
added  that  ships  had  been  taken  into  port  for  search 
as  long  ago  as  the  American  Civil  War,  and  again 
during  the  Russo-Japanese  War  and  the  Second  Balkan 
War.  The  diplomatic  discussion  was  continued,^  but 
the  Alhed  Governments  adhered  to  the  practice  of 
taking  vessels  into  port  for  search. 
Conse-  §  422.  If   a   neutral   merchantman   resists   visit   or 

^g^g^^';^°^  search,  she  is  at  once  captured,  and  may  be  confis- 
anceto     catcd.    The  question  whether  the  vessel  only,  or  also 

V  1S1Li3>~ 


tion. 


^  The   British    Privy   Council    in  to  the  port  of  Kirkwall  for  examina- 

The  Zamara,  (1916)  2  B.  and  C.  P.  C.  tion,  see  Pari.  Papers,  Misc.,  No.  1 

1,  and  the  French  Prize  Court  of  Ap-  (1918),  Cd.  8909,  and  (1919)  3  B.  and 

peal  in  TJie  Frederico  (1915),  R.G.,  C.  P.  C.  517. 
xxii.    (1915),    Jurisprudence,   p.    17, 

xxiv.   (1917),   Jurisprudence,  p.   11,  ^  Seethe  United  States  Notes  of 

considered  the   practice   justifiable.  November    7,    1914,    December    28, 

See  Hall,  p.  800.  1914,  and  November  6,  1915,  and  the 

Concerning  the    Dutch   claim  for  British   Notes  of   January  7,    1915, 

damages  for   two  torpedoed   Dutch  February   10,    1915,    and   April  24, 

vessels,  the  Bernisse  and  the  Elve,  1916,  in  Pari.  Papers,  Misc.,  No.  6 

which  were  torpedoed  by  a  German  (1915),  Cd.  7816,  and  No.  15  (1916), 

submarine  while  being  forcibly  taken  Cd.  8234  ;  see  also  Garner,  ii.  §  500. 


VISITATION  613 

her  cargo,  could  be  confiscated  for  resistance  is  con- 
troversial. According  to  British  ^  and  American  theory 
and  practice,  the  cargo  as  well  as  the  vessel  is  hable 
to  confiscation.  But  Continental  ^  writers  emphatically 
argue  against  this,  and  maintain  that  the  vessel  only  is 
liable  to  confiscation. 

According  to  Article  63  of  the  unratified  Declaration  of 
London,  resistance  to  the  legitimate  exercise  of  the  right 
of  visit,  search,  and  capture  was  to  involve  in  all  cases  the 
confiscation  of  the  vessel,  which  by  her  forcible  resist- 
ance acquired  enemy  character.^  For  this  reason  such 
goods  on  board  as  belonged  to  the  master  or  owner  of  the 
vessel  might  be  treated  as  enemy  goods  and  confiscated. 
Enemy  goods  on  board  might  then  hkewise  be  confiscated, 
although  when  they  were  first  shipped  the  vessel  bore 
neutral  character.  Further,  all  goods  on  board  were  then 
presumed  to  be  enemy  goods,  and  the  owners  of  neutral 
goods  on  board  would  have  had  to  prove  the  neutral 
character  of  their  goods.  Lastly,  no  appeal  was  to  he 
from  the  national  Prize  Courts  to  the  proposed  Litema- 
tional  Prize  Court  by  the  owner  of  the  ship  except  con- 
cerning the  one  question  only,  whether  there  was  justi- 
fication for  capturing  her  on  the  grounds  of  forcible 
resistance . 

However,  the  declaration  is  unratified,  and  there- 
fore not  legally  binding.  Visit  and  search  do  not 
take  place  after  a  vessel  has  been  captured  for  resist- 
ance, for  the  mere  fact  that  she  has  resisted  makes 
her  Hable  to  confiscation,  and  it  becomes  irrelevant 
whether  visit  and  search  would  show  her  to  be  guilty 
or  innocent. 

§  423.  According  to  the  practice  hitherto  prevaihng,^  what 
and  also  according  to  the  unratified  Declaration  of  ^^"^^3* 
London,  a  mere  attempt  on  the  part  of  a  neutral  mer-  Resist 

^  ^  ance. 

1  The  Maria,  (1799)  1  C.  Rob.  340.  '  See  above,  §  89. 

*  See  Gessner,  pp.  318-321.  *  The  Maria,  (1799)  1  C.  Rob.  340. 


614     VISITATION,    CAPTUEE,    ETC.,    OF   NEUTRAL  VESSELS 

chautman  to  escape  visitation  does  not  in  itself  consti- 
tute resistance.  But  she  may  be  chased  and  compelled 
by  force  to  bring  to,  and  she  cannot  complain  if,  in 
the  endeavour  forcibly  to  compel  her  to  bring  to,  she 
is  damaged  or  accidentally  sunk.  If,  however,  after 
the  vessel  has  been  compelled  to  bring  to,  visit  and 
search  show  her  to  be  innocent,  she  must  be  allowed 
to  proceed  on  her  course. 

For  resistance,  to  be  penal,  must  be  forcible  resist- 
ance,  e.g.   if    a  vessel   apphes  force  in  resisting  any 
legitimate    action    by    the    belhgerent    cruiser    which 
requires  her  to  stop  and  to  be  visited  and  searched. 
It  is  not  certain  whether   the   actual  apphcation  of 
force  only,  or  also  a  refusal,  on  the  part  of  the  master, 
to  show  the  ship-papers  or  to  open  locked  parts  of  the 
vessel  or  locked  boxes,  and  similar  acts,  would  con- 
stitute forcible  resistance.^ 
SaiUng         §  424.  Whcatou   excepted,    all   writers   would   seem 
Entmy     ^^  agree  that  the  fact  of  neutral  merchantmen  saihng 
Convoy     under  a  convoy  of  enemy  men-of-war  is  equivalent  to 
lent  to      forcible  resistance  on  their  part,  whether  they  them- 
^cT'     selves  intend  to  resist  by  force  or  not.     But  the  Govern- 
ment of  the  United  States  of  America  in  1810  con- 
tested this  principle.     In  that  year,  during  war  between 
Great  Britain  and  Denmark,  many  American  vessels 
saihng  from  Russia  used  to  seek  protection  under  the 
convoy   of   British   men-of-war,    whereupon   Denmark 
declared  all  such  American  vessels  to  be  good  and 
lawful  prizes.     Several  were  captured  without  making 
any    resistance    whatever,    and    were    condemned    by 
Danish   Prize   Courts.     The   United   States   protested, 
and  claimed  indemnities  from  Denmark,  and  in  1830 
a  treaty  between  the  parties  was  signed  at  Copenhagen,^ 

^  Another   unsettled    question    is  Prisenrecht  (1913),  p.  358,  holds  that 

whether  the  crew  can  be  punished  they  may  be. 
as   war    criminals    for    resorting  to 
armed    resistance;    Schramm,    Das  ^  Martens,  iV^.i?.,  viii.  p.  350. 


VISITATION  615 

according  to  which  Denmark  had  to  pay  650,000 
dollars  as  compensatioji.  But  Article  5  of  this  treaty 
expressly  declared  that  *  the  present  convention  is 
only  appUcable  to  the  cases  therein  mentioned,  and, 
having  no  other  object,  may  never  hereafter  be  in- 
voked by  one  party  or  the  other  as  a  precedent  or  a 
rule  for  the  future.'  ^ 

Article  63  of  the  Declaration  of  London  did  not 
define  the  term  '  forcible  resistance,'  and  would  not, 
therefore,  have  settled  the  point,  even  if  it  had  been 
ratified. 

§  425.  Since  Great  Britain  does  not  recognise  the  Resist- 
right  of  convoy  and  has  always  insisted  upon  the  right  Neutral 
to  visit  neutral  merchantmen  saihng  mider  the  convoy  Convoy. 
of  neutral  men-of-war,  the  question  has  arisen  whether 
such  merchantmen  are  regarded  as  resisting  visitation 
in  case  the  convoying  men-of-war  only,  and  not  the 
convoyed  vessels  themselves,  offer  resistance.     British 
practice  has  answered  the  question  in  the  afi&rmative. 
The  rule  was  laid  down  in  1799  ^  and  in  1804  ^  by  Sir 
Wilham  Scott  in  the  cases  of  Swedish  vessels  captured 
while  saihng  under  the  convoy  of  a  Sw^edish  man-of- 
war. 

Had  the  Declaration  of  London  been  ratified,  under 
Articles  61  and  62,  which  recognise  the  right  of  convoy, 
resistance   by  a  neutral  convoy  to   visitation  could  not, 

*  See  Whcaton,  §§  530-537,  and  tion.  But  the  Supreme  Court  of  the 
Taylor,  §  693,  p.  790.  Wheaton  was  United  States  of  America,  in  the  case 
the  negotiator  of  this  treaty  on  the  of  The  Nereide,  (1815)  9  Cranch  388, 
part  of  the  United  States.  With  the  held  the  contrary  view.  The  court 
case  of  neutral  merchantmen  sailing  was  composed  of  five  judges,  of  whom 
under  enemy  convoy,  the  other  case  Story  was  one,  and  the  latter  dis- 
— see  above,  §  185 — in  which  neutral  sented  from  the  majority  and  con- 
goods  are  placed  on  board  an  armed  sidered  the  British  practice  correct. 
enemy  vessel  is  frequently  confused.  See  Phillimore,  iii.  §  341  ;  Wheaton, 
In  the  case  of  The  Fanny,  (1814)  1  §  529  ;  Smith,  The  Destruction  of 
Dod.  443,  Sir  William  Scott  con-  Merchant  Ships  (\^\1),  ^^.  oS-&\. 
demned  neutral  Portuguese  property  *  The  Maria,  (1799)  1  C.  Rob. 
on  the  ground  that  placing  neutral  340. 

property  on  board  an  armed  vessel  '  The  Elsebe,    (1804)    5   C.    Rob. 

was  equal  to  resistance  against  visita-  174. 


616     VISITATION,   CAPTURE,   ETC.,   OF  NEUTRAL  VESSELS 

under  ordinary  circumstances,  have  been  considered  to  be 
resistance  on  the  part  of  the  convoyed  neutral  merchant- 
man. If,  however,  the  commander  of  a  convoy,  after 
having  refused  to  give  the  written  information  mentioned 
in  Article  61  or  to  allow  the  investigation  mentioned  in 
Article  62,  forcibly  resisted  visitation  of  the  convoyed 
merchantmen  by  a  belUgerent  cruiser,  the  question  whether 
resistance  by  a  convoy  was  equivalent  to  resistance  by  a 
convoyed  vessel  would  still  have  arisen. 

§  426.  The  purpose  of  visit  is  to  ascertain,  the  nation- 
ality of  a  vessel,  the  character  of  her  cargo  and  passengers, 
and  the  ports  from  and  to  which  she  is  saiHng,  and  it 
is  obvious  that  this  purpose  cannot  be  realised  in 
case  the  visited  vessel  is  deficient  in  her  papers.  As 
stated  above,^  every  merchantman  ought  to  carry  the 
following  papers  :  (1)  A  certificate  of  registry  or  a  sea- 
letter  (passport)  ;  (2)  the  muster-roll ;  (3)  the  log- 
book ;  (4)  the  manifest  of  cargo  ;  (5)  bills  of  lading, 
and  (6)  if  chartered,  the  charter-party.  Now,  if  a 
vessel  is  visited,  and  cannot  produce  one  or  more  of 
the  papers  mentioned,  she  is  suspect.  Search  is,  of 
course,  admissible  for  the  purpose  of  verifying  the 
suspicion ;  but  it  may  be  that  search,  while  not 
producing  any  proof  of  guilt,  does  not  dispel  the 
suspicion.  In  such  a  case  she  may  be  seized  and 
brought  to  a  port  for  thorough  examination.  But, 
except  in  a  case  where  she  cannot  produce  either  a 
certificate  of  registry  or  a  sea-letter  (passport),  she 
ought  not  to  be  confiscated  merely  for  deficiency  in 
papers.  Yet,  if  the  cargo  is  also  suspect,  or  if  there 
are  other  circumstances  which  increase  the  suspicion, 
confiscation  would  be,  I  beheve,  in  the  discretion  of 
the  Prize  Court.^ 

§  427.  Mere  deficiency  of  papers  does  not  arouse  the 

1  vol.  i.  §  262. 

»  See  Hall,  §  247".  p.  730,  n.  2 ;  and  below,  §  428  n. 


VISITATION  617 

same  suspicion  which  a  vessel  incurs  if  she  destroys  ^  Spoiia- 
or  throws  overboard  any  of  her  papers,  defaces  them  facement, 
or  conceals  them,  and,  in  particular,  if  she  does  any  of  c^almcnt 
these  things  when  the  visiting  vessel  comes  in  sight,  of  Papers. 
Whatever  her  cargo  may  be,  a  vessel  may  at  once  be 
seized  without  further  search  so  soon  as  it  becomes 
apparent  that  spohation,  defacement,  or  concealment 
of  papers  has  taken  place.     The  practice  of  the  several 
States  has  hitherto  differed  with  regard  to  other  con- 
sequences of  spohation,  defacement,  or  concealment  of 
papers  ;   but  confiscation  is  certainly  admissible  in  case 
other  circumstances  increase  the  suspicion.^ 

§  428.  Very  high  suspicion  is  aroused  if  a  visited  Double 
vessel  carries  double  papers,  or  false  ^  papers,  and  she  Papers.  ^^ 
may  certainly  be  seized.  But  the  practice  of  the 
several  States  has  differed  with  regard  to  the  question 
whether  confiscation  is  admissible  on  this  ground  alone. 
Whereas  the  practice  of  some  States,  such  as  Russia 
and  Spain,  has  answered  the  question  in  the  affirma- 
tive, British^  and  American^  practice  has  taken  a 
more  lenient  view,  and  condemned  such  vessels  only 
on  a  clear  inference  that  the  false  or  double  papers 
were  carried  for  the  purpose  of  deceiving  the  belh- 
gerent  by  whom  the  capture  was  made,  and  not  in 
other  ®  cases.'' 

^  The  Hunter,  (1815)  1  Dod.  480.  capture  of  a  vessel  would  be  justified, 

*  See    The  Apollo  in  Calvo,   v.  §  whatever    might    be    the    ultimate 
2989.  decision  of  the  Prize  Court.   Notably, 

*  The  Sarah,  (1801)  3  0.  Rob.  330.  there  is  the  case  where  some  or  all 

*  The  Eliza  and  Katy,  (1805)  6  0.  of  the  ship's  papers  have  been  thrown 
Rob.  192.  overboard,  suppressed  or  intention- 

*  The     St.     Nicholas,     (1816)     1  ally  destroyed  on  the  initiative  of 
Wheaton  417.  the    master  or  one  of   the  crew  or 

*  See  Halleck,   ii.    p.  271  ;    Hall,  passengers.     There  is   in  such  case 
§  276  ;  Taylor,  §  690.  an  element  which  will  justify  any 

'  The    unratified    Declaration    of  suspicion  and   afford  an  excuse  for 

London  did  not  mention  double  or  capturing  the  vessel,  subject  to  the 

false  papers,  but  the  Report  of  the  master's  ability  to  account  for   his 

Drafting   Committee   to   Article   64  action  before  the  Prize  Court.     Even 

contained    the    following    observa-  if  the  court  should  accept  the  ex- 

tions :      *  It    is    perhaps    useful    to  planation  given  and  should  not  find 

indicate  certain  cases  in  which  the  any  reason   for  condemnation,    the 


618     VISITATION,   CAPTURE,    ETC.,    OF  NEUTRAL  VESSELS 


\vith  a 
Neutral 
Destina- 
tion. 


CaU  at  an  §  428a.  High  suspicion  is  likewise  aroused  in  case  a 
pJrtSa  ship  with  papers  indicating  a  neutral  destination  pro- 
Vessei  ceeds  to  an  enemy  port.  The  practice  formerly  pre- 
vaihng  did  not  indeed  admit  captm'e  and  condemna- 
tion in  such  a  case  provided  the  vessel  was  not  other- 
wise suspect.  However,  during  the  World  War,  in 
October  1914,  the  Alhes  laid  down  the  following  rule  : 
*  A  neutral  vessel  with  papers  indicating  a  neutral 
destination,  which,  notwithstanding  the  destination 
shown  on  the  papers,  proceeds  to  an  enemy  port, 
shall  be  hable  to  capture  and  condemnation  if  she  is 
encountered  before  the  end  of  her  next  voyage.'  The 
Maritime  Rights  Order  in  Council  of  July  7,  1916, 
contained  a  corresponding  rule  with  regard  to  a 
neutral  vessel  carrying  contraband. 


II 


CAPTURE 

Hall,  §  277— Westlake,  ii.  pp.  309-312— Lawrence,  §  191— Phillimore,  iii. 
§§  361-364— Twiss,  ii.  §§  166-184— Halleck,  ii.  pp.  389-421— Taylor,  § 
691— Hershey,  Nos.  521-522— Moore,  vii.  §§  1206-1214— Bluntschli,  § 
860— Heffter,  §§  171,  191,  192— Geffcken  in  Holtzendorff,  iv.  pp.  777-780 

—  Rivier,  ii.  pp.   426-428— Nys,  iii.  pp.  695-710— Calvo,  v.  §§3004-3034 

—  Fiore,  iii.  Nos.  1644-1657,  and  Code,  Nos.  1901-1912— Martens, 
ii.  §  126— Kleen,  ii.  §§  203-218— Gessner,  pp.  333-356— Boeck,  Nos.  770- 
777— Dupuis,  Nos.  253-281,  and  Guerre,  Nos.  205-217— Bernsten,  §  11— 
Schramm,  §§  1415— Nippold,  ii.  §  35— Perels,  §  55— Testa,  pp.  243-244— 
Hautefeuille,  iii.  pp.  214-298— Holland,  Prize  Law,  §§  231-314— U.S. 
Naval  War  Code,  Articles  46-50 — Atherley-Jones,  Commerce  in  War 
(1907),  pp.  361-646 — Hirschmann,  Das  internationale  Prisenrecht  (1912), 


parties  interested  cannot  hope  to 
recover  compensation. 

'  An  analogous  case  would  be  that 
in  which  there  were  found  on  board 
two  sets  of  papers,  or  false  or  forged 
papers,  if  this  irregularity  were  con- 
nected with  circumstances  calculated 
to  contribute  to  the  capture  of  the 
vessel. 

'  It  appeared  sufficient  that  these 


cases  in  which  there  would  be  a 
reasonable  excuse  for  the  capture 
should  be  mentioned  in  the  present 
Report,  and  should  not  be  made  the 
object  of  express  provisions,  since, 
otherwise,  the  mention  of  these  two 
particular  cases  might  have  led  to 
the  supposition  that  they  were  the 
only  cases  in  which  a  capture  could 
be  justified.' 


CAPTURE  619 

§§  35-37— Wehberg,  §§  7  and  8— (Jarner,  ii.  §?  474-493— See  also  the 
luoiioj^raphs  quoted  above  at  the  comniencement  of  §  391,  Buliiicrincij's 
articles  on  Le  Droitdes  Prises  7nariti7nei>  in  li.I.,  x.-xiii.  (1878-1.S81),  and 
the  General  Report  presented  to  the  Naval  Conference  of  London  on 
behalf  of  its  Drafting  Committee,  Articles  48-54. 

§  429.  From  what  lias  already  been  said  regarding  Grounds 
blockade,   contraband,   unneutral   service,   and   visita-  ^^^^^  ^^ 
tion,  it  is  obvious  that  capture  may  take  place  either  Capture, 
because  the  vessel,  or  the  cargo,  or  both,  are  liable  to 
confiscation,    or   because   grave   suspicion   demands   a 
further  inquiry  which  can  only  be  carried  out  in  a 
port.      Both  cases  are  ahke  so  far  as  all  details  of 
capture  are  concerned,   and  in  the  latter  case  Prize 
Courts  may  pronounce  capture  to  have  been  justified, 
although  no  ground  for  confiscating  either  vessel  or 
cargo  has  been  detected. 

The  mode  of  captm'e  is  the  same  as  that  for  capture 
of  enemy  vessels.^ 

§  430.  The  effect  of  capture  of  neutral  vessels  is  in  Effect  of 
every  way  different  from  the  effect  of  capture  of  enemy  of^^  ^^^ 
vessels,^  since  the  purpose  of  capture  differs  in  these  yl'^^l^^ 
two  cases.     Enemy  vessels  are  captured  for  the  purpose  and  their 
of  appropriating  them  in  the  exercise  of  the  right  of  to  Port, 
belhgerents  to  appropriate  all  enemy  property  found 
on  the  open  sea,  or  in  the  maritime    territorial    belt 
of    either    belhgerent.     On    the    other    hand,    neutral 
merchantmen   are   captured   for  the   purpose   of   con- 
fiscating vessel  or  cargo,  or  both,  as  punishment  for 
certain  special  acts,  the  punishment  to  be  pronounced 
by  a  Prize  Court  after  a  thorough  investigation  into 
all  the  circumstances  of  the  special  case.     Therefore, 

^  See  above,  §  184.   The  '  Rt-glement  neutral  territorial  waters,  is  a  matter 

international  des  Prises  maritiraes,'  of  course.     If  capture  does  take  place 

adopted  by  the  Institute  of  Inter-  in  neutral  territorial  waters,  it  is  not 

national    Law    at    its    meeting    at  the    owner   of   the    vessel,    but   the 

Heidelberg  in  1887,  regulates  capture  neutral  State,  which  can  claim  its 

in  §§  45-62  ;  see  Annuaire,  ix.  (1888),  release  before  the  Prize  Court.     See 

p.  218.     That  capture  may  take  place  above,  §  362. 
on  the  high  seas,  or  in  the  territorial 
waters  of   belligerents,    but   not  in  '  See  above,  §  185. 


620     VISITATION,    CAPTURE,    ETC.,    OF   NEUTRAL  VESSELS 

although  the  effect  of  capture  of  a  neutral  vessel  is 
that  the  vessel,  and  the  persons  and  goods  thereon,  are 
placed  under  the  captor's  authority,  her  officers  and 
crew  never  become  prisoners  of  war.  They  are  indeed 
to  be  detained  as  witnesses  for  the  trial  of  the  vessel 
and  cargo,  but  nothing  stands  in  the  way  of  releasing 
such  of  them  as  are  not  wanted  for  that  purpose.  As 
regards  passengers,  if  any,  they  have  to  be  released  as 
soon  as  possible,  with  the  exception  of  those  enemy 
persons  who  may  be  made  prisoners  of  war. 

Regarding  the  conduct  of  neutral  vessels  to  a  port  of 
a  Prize  Court,  whether  captured  by  a  belhgerent 
cruiser  or  by  mihtary  aircraft,  the  same  is  vahd  as  regards 
conduct  of  captured  enemy  vessels  ^  to  such  port. 
Destruc-  §  431.  That,  as  a  rule,  captured  neutral  vessels 
N^^utrli  ^^y  ^^^  ^^  sunk,  burned,  or  otherwise  destroyed  has 
Prizes,  always  been  universally  recognised,  just  as  that  cap- 
tured enemy  merchantmen  may  not,  as  a  rule,  be  de- 
stroyed.^ But  it  has  long  been  a  moot  question  w^hether 
captured  neutral  vessels  as  well  as  captured  enemy 
vessels  might  be  destroyed  in  exceptional  cases  instead 
of  being  brought  before  a  Prize  Court.  British  ^  prac- 
tice did  not,  as  regards  her  neutral  owner,  hold  the 
captor  justified  in  destroying  a  neutral  vessel,  however 
exceptional  the  case  might  have  been,  and  however 
meritorious  the  destruction  of  the  vessel  from  the 
point  of  view  of  the  Government  of  the  captor.  For 
this  reason,  should  a  captor,  for  any  motive  what- 
ever, have  destroyed  a  neutral  prize,  full  indemnities 
had  to  be  paid  to  the  owner,  although,  if  brought 
into  a  port  of  a  Prize  Court,  condemnation  of  vessel 
and  cargo  would  have  been  pronounced  beyond  doubt. 

^  See  above,  §  193.  Leucade,    (185.5)   Spinks    217.      See 

*  See  Smith,    The   Destruction   of  Phillimore,  iii.   §  3.33  ;    Twiss,   ii.    § 

Merchant  Ships  under  International  166 ;  Hall,  §  277  ;  Holland,  Letters  to 

i/ai«  (1917),  pp.  78-101.  the   '  Times'   upon    War    and    Neu- 

3  The  Actton,   (1815)  2  Dod.   48;  trality  (1909),  pp.   140-150;    Garner 

The  Felicity,  (1819)  2  Dod.  381 ;  The  in  A.J.,  x.  (1916),  pp.  12-41. 


CAPTURE  621 

The  rule  was  that  a  neutral  prize  must  be  abandoned, 
if  for  any  reason  it  could  not  be  brought  to  a  port 
of  a  Prize  Coiu't.  But  the  practice  of  other  States 
did  not  recognise  this  British  rule.  The  question 
became  of  great  importance  in  1905,  during  the  Russo- 
Japanese  War,  when  Russian  cruisers  sank  the  British 
vessels  Hipsang,  Knight  Commander,  Oldhamia,  St. 
Kilda,  Ikhona,  and  the  German  vessels  Thea  and 
Tetartos,  and  the  Danish  vessel  Prinsesse  Marie.^ 
Russia  paid  damages  to  the  owners  of  the  Ikhona,  St. 
Kilda,  Thea,  Tetartos,  and  Prinsesse  Marie,  because 
her  Prize  Courts  declared  that  their  capture  was  not 
justified,  but  she  refused  to  pay  damages  to  the  owners 
of  the  other  vessels  destroyed,  because  her  Prize  Courts 
considered  them  to  have  been  justly  captured. 

The  Declaration  of  London  proposed  to  settle  the 
matter  by  a  compromise.  Recognising  that  neutral 
prizes  may  not  as  a  rule  be  destroyed,  and  admitting 
only  one  exception  to  the  rule,  it  empow^ered  the  captor 
mider  certain  circumstances  and  conditions  to  demand 
the  handing  over,  or  to  proceed  himself  to  the  destruc- 
tion, of  contraband  carried  by  a  neutral  prize  which  he 
was  compelled  to  abandon. 

According  to  Article  48,  as  a  matter  of  principle,  cap- 
tured neutral  vessels  might  not  be  destroyed,  but  had  to 
be  taken  into  a  port  of  a  Prize  Court.  However,  Article 
49  permitted,  as  an  exception,  the  destruction  of  a  cap- 
tured neutral  vessel  which  would  have  been  hable  to  con- 
demnation, if  the  taking  of  the  vessel  into  a  port  of  a  Prize 
Court  would  have  involved  danger  to  the  safety  of  the 
capturing  cruiser,  or  to  the  success  of  the  operations  in 
which  she  was  at  the  time  of  capture  engaged. 

According  to  these  provisions,  a  neutral  prize  might  no 
longer  be  destroyed  because  the  captor  could  not  spare  a  prize 

1  Reported  in  Hurst  and  Bray,  i.  pp.  21,  54,  357,  145,  188,  226,  96, 
166,  276. 


622      VISITATION,    CAPTURE,    ETC.,   OF  NEUTEAL  VESSELS 

crew,^  or  because  a  port  of  a  Prize  Court  was  too  far  distant, 
or  the  like.  The  only  justification  for  destruction  was 
to  be  danger  to  the  captor  or  to  his  operations  at  the  time 
of  capture.  As  regards  the  degree  of  danger  required, 
Article  49  did  not  provide  any  clue.  But  considering  that 
Article  51  spoke  of  an  '  exceptional  necessity,'  it  was  to  be 
hoped  and  expected  that  Prize  Courts  would  give  such  an 
interpretation  to  Article  49  as  would  permit  the  sinking 
of  neutral  prizes  in  cases  of  absolute  necessity  only.  Be 
that  as  it  may,  according  to  Article  49,  only  such  neutral 
prizes  might  be  sunk  as  would  be  hable  to  confiscation  if 
brought  before  a  Prize  Court.  Sinking  of  captured  neutral 
vessels — apart  from  those  which  had  acquired  enemy 
character  and  might  for  this  reason  be  sunk  under  the 
same  conditions  as  enemy  vessels — was,  therefore,  chiefly 
admitted  under  the  exceptional  circumstances  mentioned  in 
Article  49  in  three  ^  cases,  namely:  (1)  when — ^see  Article 
40 — the  vessel  carried  contraband  the  value  of  which  formed 
more  than  half  the  value  of  the  cargo  ;  (2)  when  a  vessel  had 
been  captured  for  rendering  those  kinds  of  unneutral  service 
which  were  enumerated  by  Article  45  ;  (3)  when — see  Article 
21 — a  vessel  had  been  captured  for  breach  of  blockade.  In 
no  case  in  which  she  was  not  liable  to  confiscation  might  a 
neutral  vessel  under  any  circumstances  or  conditions  be  de- 
stroyed ;  she  had  always  to  be  abandoned  if  the  capturing 
cruiser  could  not  take  her  into  a  port  of  a  Prize  Court. 

However,  the  compromise  proposed  by  the  Declara- 
tion of  London  has  not  been  ratified,  and  is  not  there- 
fore legally  binding. 

When  a  captor  destroys  a  neutral  prize,  he  must 
place  in  safety  all  persons  found  on  the  captured  vessel, 
and  he  must  take  on  board  all  the  captured  ship's 
papers  which  are  relevant  for  the  pm'pose  of  deciding 
the  validity  of  the  capture.^ 

^  Schramm,  p.  513,  asserts  the  vessel  carried  defective,  spoiled,  de- 
oontrary,  and  quotes  Wehberg  in  his  faced,  double,  or  false  papers,  see 
support.  above,  §§  426-428. 

^  See  Article  50  of  the  unratified 

^  As  to  cases  in  which  a  neutral       Declaration  of  London, 


r 


CAPTURE  623 

Moreover,  according  to  Article  51  of  the  unratified 
Declaration  of  London,  if  the  captor  failed  to  establish 
before  the  Prize  Court  that  he  destroyed  the  prize  in  the 
face  of  an  exceptional  necessity,  the  owners  of  the  vessel 
and  cargo  had  to  receive  full  compensation  without  any 
examination  of,  and  any  regard  to,  the  question  whether 
the  capture  itself  was  justifiable.  Compensation  had 
likewise  to  be  paid  in  case  the  capture  was  held  by  the 
Prize  Court  to  be  invalid,  although  the  act  of  destruction 
was  held  to  be  justifiable  (Article  52).  In  any  case,  the 
owners  of  neutral  goods  ^  not  liable  to  condemnation  which 
had  been  destroyed  with  the  vessel,  might  always,  and 
under  all  circumstances  and  conditions,  claim  damages 
(Article  53). 

Thus  many  safeguards  would  have  been  established 
against  arbitrariness  in  the  destruction  of  neutral  prizes. 
On  the  other  hand,  it  seemed  to  be  going  too  far  to  insist 
on  the  captor  letting  the  prize  go  with  her  contraband  on 
board,  if  he  was  compelled  to  abandon  her.  For  this 
reason  Article  54  empowered  the  captor  of  a  neutral  vessel 
herself  not  liable  to  confiscation  to  demand  the  handing 
over,  or  to  proceed  himself  to  the  destruction,^  of  any 
goods  Uable  to  confiscation  found  on  board,  if  the  taking 
of  the  vessel  into  a  port  of  a  Prize  Court  would  have  in- 
volved danger  to  the  captor,  or  to  the  success  of  the 
operations  in  which  he  was  at  the  time  of  capture  engaged. 

However,  the  rules  of  the  Declaration  of  London 
remain  unratified,  and,  during  the  World  War,  the 
practice  of  the  Central  Powers  was  very  different.^ 

§  431a.  There  is  no  case  on  record  in  which,  during  Destruc- 
the  World  War,  the  Allied  and  Associated  Powers  ^eutrli 
destroyed   intentionally   a    single    neutral   ship.     The  P"^''^ 

*  It      has      been      asserted — see  any  such  claim.  the  World 

Schramm,    pp.    515-516  —  that    the  "  Details  concerning  such  destruc-   "  *'^- 

owners  of  enemy  goods,  contraband  tion  have  been  given  above  in  §  406a 

excepted,  may  also  claim  compensa-  (2). 

tion  because,  according  to  the  De-  *  All  rules  concerning  destruction 

claration  of   Paris,  the  neutral  flag  of     neutral     prizes     by    belligerent 

covers  enemy  goods.    But  it  is  doubt-  cruisers    apply   also    to   destruction 

ful  if  Prize  Courts  would  recognise  by  belligerent  military  aircraft. 


624     VISITATION,    CAPTURE,    ETC.,    OF  NEUTRAL  VESSELS 

Central  Powers,  on  the  other  hand,  are  beheved  to 
have  sunk  no  less  than  1716.^  In  a  few  cases — such  as 
those  of  the  American  vessels  Gulflight,  torpedoed  on 
May  7,  1915,  and  Nehraskan,  torpedoed  on  May  25, 
1915 — Germany  admitted  or  claimed  that  a  mistake 
had  been  made,^  and  in  a  few  others — such  as  those 
of  The  Drawpner,  Saga,  and  Asia — the  German  Prize 
Court  of  Appeal,  reversing  the  lower  court,  declared 
the  destruction  of  the  vessels  to  have  been  illegal  and 
compensated  the  owners.  But  in  most  cases  the 
destruction  of  neutral  vessels  at  sight  without  visit 
and  search,  no  provision,  or  no  adequate  provision, 
being  made  for  the  safety  of  passengers  and  crew, 
was  upheld  by  the  Central  Powers,  mainly  on  the 
ground  (which  their  submarines  did  not  stop  to  verify) 
that  they  were  carrying  contraband,  and  that  to  have 
brought  them  to  a  port  of  a  Prize  Court  would  have 
involved  danger  to  the  captor.  Among  the  best 
known  cases  are  those  of  the  American  neutral  vessel 
William  P.  Frye,  sunk  by  the  German  cruiser  Prinz 
Eitel  Friedrich,^  and  the  Dutch  vessels  Maria  and 
Medea,^  the  sinking  of  which  was  upheld  by  the 
German  Prize  Courts.  But  the  torpedoing  of  neutral 
vessels  at  sight  became  a  regular  feature  of  German 
submarine  warfare,  and  no  neutral  maritime  State 
was  exempt.  Over  2000  sailors  are  said  to  have 
been  drowned.^ 
Ransom  §  432.  Regarding  ransom  of  captured  neutral  vessels, 
ca'^tS-e  of  ^^^  ^^'oa.Q  is  vahd  as  regards  ransom  of  captured  enemy 

Neutral      yCSScls.^ 

As   regards   recapture   of  neutral   prizes,'^  the   rule 
ought  to  be  that  if  so  facto  by  recapture  the  vessel 

1  Garner,  ii.  §  491.  *  See  above,  §  195. 

2  Garner  ii  ^  484  '  ^^®  Hautefeuille,  iii.  pp.  369- 
earner,  ii.  8  *»*•  4O7  .  Gessner,  pp.  344-356;  Kleen, 
See  Garner,  11.  ^  485.  ji    §  217  ;   Geffcken  in  HoUzendorff, 

*  Ibid.,  §§486-487.  iv.  pp.  778-780;   Calvo,  v.  §§3210- 

^  Details  in  Gamer,  ii.  §  491.  3216, 


CAPTURE  625 

becomes  free  without  payment  of  any  salvage.  Although 
captured,  she  was  still  the  property  of  her  neutral 
owners,  and  if  condemnation  had  taken  place  at  all, 
it  would  have  been  a  punishment,  and  the  recaptur- 
ing belligerent  has  no  interest  whatever  in  the  punish- 
ment of  a  neutral  vessel  by  the  enemy. 

But  the  matter  of  recapture  of  neutral  prizes  is  not 
settled,  no  rule  of  International  Law,  and  no  uniform 
practice  of  the  several  States,  being  formulated  regard- 
ing it.  Very  few  treaties  touch  upon  it,  and  the  muni- 
cipal regulations  of  the  different  States  regarding 
prizes  seldom  mention  it.  According  to  British  prac- 
tice, the  recaptor  of  a  neutral  prize  is  only  entitled  to 
salvage  when  the  recaptured  vessel  would  have  been 
Hable  to  condemnation  if  brought  into  an  enemy  port, 
or  when  the  enemy  Prize  Court,  if  the  vessel  had  been 
destroyed  by  the  captor,  would  have  considered  her 
destruction  justifiable.^ 

§  433.  Besides  the  case  in  which  captured  vessels  Release 
must  be  abandoned,  because  they  cannot  for  some  Capture, 
reason  or  another  be  brought  into  a  port,  there  are 
cases  in  which  they  are  released  without  trial.  The 
rule  is  that  a  captured  neutral  vessel  is  to  be  tried  by 
a  Prize  Court  in  case  the  captor  asserts  her  to  be  sus- 
picious or  guilty.  But  it  may  happen  that  all  suspicion 
is  dispelled  even  before  the  trial ;  and  then  the  vessel 
is  to  be  released  at  once.^  Even  after  she  has  been 
brought  into  the  port  of  a  Prize  Court,  release  may 
take  place  without  trial.  Thus  the  German  vessels 
Bundesrath  and  Herzog,  which  were  captured  in  1900 
during  the  South  African  War  and  taken  to  Durban, 
were,  after  search  had  dispelled  all  suspicion,  released 
without  trial. 

1   The    War  Omkan,   (1799)   2  C.  (1919)  3  B.  and  C.  P.  C.   470.     See 

Rob.    299;     The   PoiUoporos,  (1915)  also  Holland,  Prize  Law,  §  270. 
1  B.  and  C.  P.  C.  371  ;  (1916)  2  B. 

and   C.    P.    C.    87  ;     The    Svanfos,  *  See  Holland,  Prize  Law,  §  246. 

VOL.  II.  2r 


626      VISITATION,  CAPTURE,    ETC.,    OF  NEUTRAL  VESSELS 

That  the  released  vessel  may  claim  damages  is  a 
matter  of  course,  and  Article  64  of  the  Declaration 
of  London  would  have  so  enacted,  if  it  had  been  ratified. 


Ill 

TRIAL  OF  CAPTURED   NEUTRAL  VESSELS 

La^v^ence,  §§  188-190— Maine,  p.  96— Manning,  pp.  472-483— Phillimore,  ill. 
§§  433-508— Twiss,  ii.  §§  169-170— Halleck,  ii.  pp.  423-462— Taylor,  §§ 
563-567— Wharton,  iii.  §§  328-330— Hershey,  Nos.  523-524— Moore,  vii. 
§§  1222-1248— Wheaton,  §§  389-397— Bluntschli,  §§  841-862— Heffter, 
§§  172-173— Geffcken  in  Holtztndorff,  iv.  pp.  781-788— Ullmann,  §  196— 
Bonfils,  Nos.  1676-1691 — Despagnet,  Nos.  677-682  his — Rivier,  ii.  pp. 
353-356— Nys,  iii.  pp.  711-736— Calvo,  v.  §§  3035-3087— Fiore,  iii.  Nos. 
1681-1691,  and  Code,  Nos.  1913-1952— Martens,  ii.  §§  125-126— Kleen,  ii. 
§§  219-234— Gessner,  pp.  357-426— Boeck,  Nos.  740-800— Dupuis,  Nos. 
282-301,  and  Querre,  Nos.  218-223— Nippold,  ii.  §  35— Perels,  §§56-57— 
Schramm,  §  17— Testa,  pp.  244-247— Hautefeuille,  iii.  pp.  299-369— 
Atherley- Jones,  Commerce  in  War  (1907),  pp.  361-594— Hirschmann, 
Das  internationale  Prisenrecht  (1912),  §  38 — Wehberg,  §  9 — Picciotto, 
The  Relation  of  International  Law  to  the  Law  of  England  and  the  United 
States  (1915),  pp.  26-47— Pyke  in  the  Law  Quarterly  Review,  xxxii. 
(1916),  pp.  144,  167— See  also  the  monographs  quoted  above  at  the  com- 
mencement of  §  391,  and  Bulmerincq's  articles  on  Le  Droit  des  Prises 
maritimes  in  R.I.,  x.-xiii.  (1878-1881). 

Trial  of  §  434.  Although  belhgerents  have,  under  certain 
Vessel? a  circumstauces,  according  to  International  Law,  the 
Mumcipai  ^gj^t  to  captuTc  ncutral  vessels,  and  although  they 
have  the  duty  to  bring  these  vessels  for  trial  before  a 
Prize  Court,  such  trials  are  in  no  way  an  international 
matter.  Just  as  Prize  Courts  are  municipal  ^  institu- 
tions, so  trials  of  captured  neutral  vessels  by  these 
Prize    Courts    are    municipal    matters.     The    neutral 

^  See  above,  §  192.    The  matter  is  Act,  1916  (6  Geo.  v.  c.  2) ;  the  Naval 

regulated,  so  far  as  Great  Britain  is  Prize  Act,  1918  (8&9  Geo.  v.  c.  30). 

concerned,  by  the  Naval  Prize  Act,  The    '  Reglement   international   des 

1864  (27  &  28  Vict.  e.  25)  ;  the  Prize  Prises  maritimes,'  adopted  in  1887  at 

Courts  Act,  1894  (57  &  58  Vict.  c.  Heidelberg  by  the  Institute  of  Inter- 

39) ;    the   Prize  Courts  (Procedure)  national   Law,   suggested   in   §§  63- 

Act,  1914  (4  &  5  Geo.  v.  c.  13);  the  118    detailed    rules   concerning    the 

Prize  Court  Rules,  1914 ;    the  Prize  organisation    of     Prize   Courts   and 

Court  Act,    1915  (5  &  6  Geo.   v.   c.  the  procedure  before  them  ;  see  An- 

57) ;    the  Naval  Prize    (Procedure)  nuaire,  ix.  (1888),  p.  218. 


TRIAL   OF   CAPTURED   NEUTRAL  VESSELS  627 

home  States  of  the  vessels  are  not  represented  anA  are 
not,  directly  at  any  rat€,  concerned  in  the  trial.  Nor, 
as  commonly  maintained  in  England  and  the  United 
States,  is  the  law  administered  by  Prize  Courts  Inter- 
national Law.  These  courts  apply  the  law  of  their 
country,  although  a  country  may  have  adopted  as 
municipal  law  the  principles  of  International  Law 
concerning  prizes.  Great  Britain  and  the  United 
States  have  done  this.  The  best  proof  that  Prize 
Courts  administer  their  own  municipal  law  is  to  be 
foimd  in  the  fact  that  the  practice  of  the  Prize  Courts 
of  the  several  countries  difiers  in  many  points.  Thus, 
for  instance,  the  question  of  enemy  character,  the 
question  what  is,  and  what  is  not,  contraband,  and 
the  question  when  an  attempt  to  break  blockade 
begins,  and  w^hen  it  ends,  have  been  differently  answered 
by  the  practice  of  different  States.  In  most  countries, 
when  war  breaks  out,  the  Governments  draw  up  a 
body  of  prize  rules  which  the  Prize  Courts  have  to 
apply ;  and  although  these  rules  are  supposed  to  be 
in  conformity  with  International  Law,  the  Prize  Courts 
cannot  go  back  upon  them  if  in  fact  they  do  not.^ 

Many  writers,  however,  do  maintain  that  Prize 
Courts  are  international  courts,  and  that  the  law 
administered    by    them    is    International    Law.     Lord 

^  See  the  judgment  of  the  German  ternational  Law  establishes  rights 
Prize  Court  in  The  Elida,  Z.V.,  ix.  and  obligations  only  as  between 
(1915),  p.  109  : — 'The  Prize  Regula-  States  as  such.  For  judging  the 
tions  contain  the  principles  fixed  by  legality  of  acts  in  connection  with 
the  Emperor  as  holder  of  the  supreme  prize  law  by  the  prize  coiu'ts,  general 
command  within  his  Imperial  legal  international  principles  can  therefore 
competency  for  the  exercise  of  the  apply  only  in  so  far  as  the  prize 
right  of  capture  appertaining  to  regulations  do  not  contain  any 
naval  warfare,  and  therefore  form,  provisions,  and  consequently  refer 
in  the  first  instance,  an  authoritative  tacitly  to  the  principles  of  Inter- 
rule,  not  only  for  the  war  navy,  but  national  Law.  The  question  itself 
in  so  far  as  the  legality  of  acts  of  as  to  whether  any  provision  of  the 
naval  commanders  in  connection  with  prize  regulations  is  in  harmony  with 
the  right  of  capture  comes  in  question,  general  international  principles  must 
also  for  the  inland  authorities  gi%-ing  therefore  be  eliminated  from  the 
decisions  in  this  connection,  and  in  decisions  of  the  prize  courts.' 
particular  for  the  prize  courts.     In- 


628      VISITATION,    CAPTURE,   ETC.,    OF   NEUTRAL  VESSELS 

Stowell  again  and  again  ^  emphatically  asserted  it, 
and  the  vast  majority  of  Enghsh  and  American  writers  ^ 
followed  liim.  Indeed,  although  dm:ing  the  World 
War  the  British  Prize  Court  of  Appeal,  the  Privy 
Council,  recognised  ^  that  Prize  Courts  are  municipal 
courts,  it  still  asserted  that  they  administer  Inter- 
national Law  ;  and  in  a  later  case  the  Prize  Court  was 
again  called  *  an  international  tribunal/  * 

But  it  is  to  be  expected  that  recognition  of  the  difEer- 
ence  between  Municipal  and  International  Law,  as 
expounded  above, ^  and  of  the  fact  that  States  only, 
and  neither  their  courts  nor  officials  nor  citizens,  are 


1   The  Maria,  (1799)  1  C.  Rob.  340 ; 

The  Recovery,  (1807)  6  C.  Rob.  341  ; 

The  Fox,  (1811)  Edwards  311. 

"  See,  for  instance,  Halleck,  ii.  p. 
411  ;  Manning,  p.  472  ;  Phillimore, 
iii.  §§  433-436 ;  Hall,  i:  277.  But  see, 
on  the  other  hand,  Holland,  Studies, 
p.  196  ;  Westlake,  ii.  pp.  317-318  ; 
Scott,  Conferences,  p.  467 ;  Maine, 
p.  96  ;  Pyke  in  the  Laiv  Quarterly 
Review,  xxxii.  (1916),  pp.  144-167. 

^  The  Zamora,  (1916)  2  B.  and 
C.  P.  C.  1  at  p.  12.  The  judgment 
in  this  case  is  of  the  greatest  im- 
portance, because  it  laj's  down  the 
principle  that  British  Prize  Courts 
are  not  bound  by  Orders  in  Council 
which  are  contrary  to  International 
Law  unless  they  amount  to  a  mitiga- 
tion of  the  rights  of  the  Crown  in 
favour  of  the  enemy  or  a  neutral,  or 
authorise  reprisals  justified  by  the 
circumstances  of  the  case  and  not 
entailing  upon  neutrals  a  degree  of 
unreasonable  inconvenience.  See 
above,  §  319  ;  The  Altvina,  (1918)  3 
B.  and  C.  P.  C.  54  at  p.  58  ;  The 
Proton,  (1918)  3  B.  andC.  P.  C.  125. 
On  the  other  hand,  the  judgment 
in  The  Zamora  recognised  that 
British  Prize  Courts  are  bound  by 
such  Acts  of  Parliament  as  are 
contrary  to  International  Law,  there- 
by disproving  the  assertion  that 
Prize  Courts  were  bound  to  apply 
International  Law.  If  they  were, 
how  could  an  Act  of  Parliament 
which  was  contrary  to  International 
Law  be  binding  upon  them  ?     Muni- 


cipal Law  cannot  per  se  change 
International  Law.  The  fact  that 
British  Prize  Courts  are  bound  to 
apply  an  Act  of  Parliament  shows 
clearly  that  the  law  which  they  apply 
is  Municipal  Law,  although  it  is  in 
substance  International  Law,  which 
has  been  adopted  by  Municipal  Law, 
and  has  not  been  abrogated  by  an 
Act  of  Parliament,  or  by  an  Order  in 
Council  in  mitigation  of  the  rights  of 
the  Crown,  or  by  an  order  authorising 
justified  reprisals. 

Be  that  as  it  may,  it  is  remarkable 
that  the  Privj'  Council  does  not 
consider  British  Prize  Courts  bound 
to  apply  the  whole  of  International 
Law,  but  only  the  International  Law 
of  Prize  in  the  narrower  sense  of  the 
term.  See  The  Sudmark,  (1917)  2 
B.  and  C.  P.  C.  473,  in  which  the 
court  declared  that  the  jurisdiction 
of  a  court  of  prize  does  not  embrace 
the  whole  region  covered  by  Inter- 
national Law,  but  is  confined  to 
taking  cognisance  of,  and  adjudica- 
ting upon,  certain  matters  (including 
capture  at  sea)  which  in  former 
times  were  enumerated  in  the  Royal 
Commissions  under  which  the  court 
was  constituted,  and  are  now  defined 
both  by  statute  and  by  the  Royal 
Commission  issued  at  the  beginning 
of  a  war. 

"^  The  Kronprinzesain  Victoria, 
(1918)  3  B.  and  C.  P.  C.  247  at  p. 
254. 

'  vol.  i.  §§  20-25. 


TRIAL   OF   CAPTURED   NEUTRAL  VESSELS  629 

subjects  of  International  Law,  will  lead  also  to  the 
general  recognition  of  the  fact  that  the  law  apphed 
by  national  Prize  Courts  is  not,  and  cannot  be.  Inter- 
national Law,  even  when,  as  in  Great  Britain  and  the 
Uixited  States  of  America,  the  rules  of  International 
Law  concerning  prizes  have  for  the  most  part^  been 
adopted  by  Municipal  Law. 

And  matters  will  remain  as  they  are  even  should 
an  International  Prize  Court  be  estabhshed,  and 
an  international  code  of  prize  law,  similar  to  the  un- 
ratified Declaration  of  London,  become  universally 
accepted.  The  law  of  such  a  code  would  certainly  be 
International  Law ;  yet  it  could  only  bind  the  States 
concerned.  They,  in  their  turn,  would  have  to  embody 
it  in  their  Municipal  Law,  with  the  consequence  that 
their  Prize  Courts  would  be  obliged  to  administer  such 
Municipal  Law  in  prize  cases  as  was  in  conformity 
with  the  international  code.  It  would  be  the  task  of 
the  International  Prize  Court  ^  to  control  the  national 
Prize  Courts  in  that  respect.  If  a  State,  having  accepted 
such  an  international  code  of  prize  law,  by  a  statute 
ordered  its  Prize  Courts  to  apply  a  law  in  opposition 
to  the  international  code,  it  would  commit  an  inter- 
national dehnquency ;  nevertheless,  its  Prize  Courts 
would  be  obhged  to  apply  the  law  laid  down  by  the 
statute. 

As  regards  the  procedure  in  Prize  Courts,  no  general 
rules  of  International  Law  exist  as  yet ;  and  so  every 
State  settles  the  matter  according  to  discretion.  But 
of  course  a  fair  hearing  must  be  afforded  to  all  claims. 
The  procedure  in  Prize  Courts  cannot  be  compared  with 

*  The    fact    that    if    a    vessel    is  Law.     If  thej'  did,  they  would  have 

captured  in  neutral  waters  and  the  to   liberate  the  prize,    whether  the 

neutral  State  does  not  claim  her  in  neutral  State  claimed  it  or  not.     See 

the  Prize  Court,  she  is,  according  to  also  n.  3  on  p.  628. 
British  practice,  condemned,  shows 

that  Prize  Courts  in  England  do  not  *  Trial   before   this  court   would, 

in  every  point   apply  International  of  course,  be  an  international  matter. 


630     VISITATION,    CAPTURE,   ETC.,   OF  NEUTRAL  VESSELS 

the  procedure  in  civil  or  criminal  courts,  for  in  Prize 
Courts  the  burden  of  proof  is  in  practice  everywhere 
laid  upon  the  owner  of  the  captured  vessel  or  cargo. 
Ever}n;vhere  in  the  first  instance,  no  doubt,  evidence 
must  come  from  the  ship-papers  and  the  depositions 
of  the  master  and  officers — '  out  of  the  vessel's  own 
mouth  ' ;    but  other  evidence  is  also  admitted  in  prac- 
tice,^ and  it  could  not  be  otherwise  without  keeping 
the  door  wide  open  to  deceit. 
Result  of       §  435.  The  trial  of  a  captured  neutral  ship  can  have 
one  or  more  of  five  results :  (1)  vessel  and  cargo  may 
be  condemned,^  or  (2)  the  vessel  alone  may  be  con- 
demned, or  (3)  the  cargo  alone  may  be  condemned,  or 
the  vessel  and  cargo  may  be  released  either  (4)  with 
or  (5)  without  costs  and  damages.     Costs  and  damages 
must  be  allowed  when  capture  was  not  justified.     But 
capture  may  be  justified,  as,  for  instance,  in  the  case 
of  spohation  of  papers,  although  the  Prize  Court  does 
not  condemn  the  vessel,  and  in  that  case  costs  and 
damages   will   not   be   awarded ;     fm*ther,    costs   and 
damages  are  never  allowed  if  even  a  part  of  the  cargo 
is   condemned,    although   the   vessel   herself   and   the 
greater  part  of  the  cargo  are  released.     That,  in  case 
the  captor  is  unable  to  pay  the  costs  and  damages 
allowed  to  a  released  neutral  vessel,  his  Government 
has  to  indemnify  the  vessel,  there  ought  to  be  no  doubt, 
for  a  State  bears  '  vicarious  '  responsibihty  ^  for  inter- 
nationally injurious  acts  of  its  naval  forces. 
Trial  §  436.  Prior  to  the  World  War,  it  was  a  moot  ques- 

ciu8ion°of  ^i^^  whether  neutral  vessels  captured  before  conclu- 

Peace. 

*  See  Pyke  in  the  Law  Quarterly  C.  P.  C.  554  at  p.  559  :  '  The  efiFect 
Review,  xxxii.  (1916),  p.  56.  of  a  condemnation  is  to  divest  the 

*  It  would  seem  to  be  obvious  that  enemy  subject  of  his  ownei'ship  as 
condemnation  of  the  vessel  involves  from  the  date  of  the  seizure.'  Con- 
the  loss  of  the  vessel  at  the  date  of  trast  the  project  of  the  Institute  of 
capture  ;  see  Andersen  v.  Marten,  International  Law  in  Annuaire,  ix. 
[1907]  2  K.B.  248,  [1908]  A.C.  334.  (1888),  p.  218. 

See  also  The  Odessa,  (1915)  1  B.  and  ^  See  above,  vol.  i.  §  163. 


TRIAL  OF   CAPTURED  NEUTRAL  VESSELS  631 

sion  of  peace  might  be  tried  after  the  conclusion  of 
peace. ^  The  author  thought  that  the  answer  must 
be  in  the  affirmative,  even  if  a  special  clause  was 
contained  in  the  Treaty  of  Peace,  which  stipulated 
that  vessels  of  the  belhgerents  captured  but  not  yet 
condemned  should  be  released.  A  trial  of  neutral 
prizes  is  in  any  case  necessary  for  the  purpose  of  decid- 
ing whether  capture  was  justified  or  not,  and  if  not, 
whether  costs  and  indemnities  should  be  awarded  to 
the  owners.  Thus,  after  the  conclusion  of  the  Abys- 
sinian War,  in  December  1896,  the  Itahan  Prize  Com- 
mission, in  the  case  of  The  Doelwijk,^  claimed  the  right 
to  try  the  vessel  in  spite  of  the  fact  that  peace  had 
been  concluded  between  the  time  of  capture  and  trial, 
and  declared  the  capture  of  the  vessel  and  cargo  to 
have  been  justified  ;  but  it  pronomiced  that,  peace 
having  been  concluded,  confiscation  of  vessel  and 
cargo  would  no  longer  be  lawful. 

Different,  however,  from  the  question  whether  neutral 
prizes  might  be  tried  after  the  conclusion  of  peace  was 
the  question  whether  they  might  be  condemned  and 
confiscated.  In  the  above-mentioned  case  of  The 
Doelwijk  the  question  was  answered  in  the  negative, 
but  the  author  beheved  that  it  ought  to  have  been 
answered  in  the  afi&rmative.^  Confiscation  of  vessel 
and  cargo  having  the  character  of  a  punishment,  it 

'  See  Perels,  §  57,  p.  309,  Wehberg,  above,   §  415  n. — would  have  been 

p.  58,  and  Borchard,  §  100,  in  con-  justified. 

tradistinction  to  Bluntschli,   §  862.  *  See  Martens,  N.R.G.,  2nd  Ser. 

But  there  is,  of  course,  no  doubt  that  xxviii.  pp.  66-90,  and  Diena  in  the 

a  belligerent  can  exercise  an  act  of  Journal  de  Droit  international  privd 

grace  and  release  such  prizes.    Thus,  (1897),  pp.  268-297.     See  also  above, 

in  November  1905,  at  the  end  of  the  §  403. 

Russo-Japanese   War,    the    Mikado  *  After  the  conclusion  of  the  Russo- 

proclaimed  the  unconditional  release  Japanese  War,    in  November    1905 

of  all  neutral  prizes  captured  after  and   February    1906,    the    Japanese 

the  signing  but  before  the  ratifica-  Prize  Courts  condemned  two  Ameri- 

tion  of    the   Peace   of   Portsmouth.  can  vessels.    The  Aiistralia  and  The 

Thereby,  three  German  vessels,  two  Montara,  which  had  been  captui'cd 

English,  and  one  Norwegian  escaped  shortlj-  before  the  conclusion  of  peace 

confiscation,  which  in  strict  law — see  (Hurst  and  Bray,  ii.  pp.  373,  403). 


632      VISITATION,    CAPTURE,    ETC.,    OF  NEUTRAL  VESSELS 

seemed  to  him  that  the  pmiishment  might  be  inflicted 
after  the  conchision  of  peace  provided  the  offence  was 
consummated  before  peace  was  conchided.  But  nothing, 
of  course,  stood  in  the  way  of  a  belUgerent  taking  a 
more  lenient  view,  and  ordering  his  Prize  Courts  not 
to  pronounce  confiscation  of  neutral  vessels  after 
the  conclusion  of  peace. 

At  the  end  of  the  World  War,  the  author's  opinion 
was  confirmed;  at  any  rate  so  far  as  British  practice 
is  concerned,  since  in  March  1920,  after  the  Treaty 
of  Peace  with  Germany  had  come  into  force,  the  Rann- 
veig,  a  Norwegian  vessel  captured  on  March  6,  1919, 
for  carrying  a  full  cargo  of  contraband  to  a  German 
base  of  supply  during  the  armistice,  was  condemned 
by  the  British  Prize  Court.  ^ 
Protests  §  437.  If  a  trial  leads  to  condemnation,  which  is 
Ckimsof  confirmed  by  the  Court  of  Appeal,  the  matter,  as 
Neutrals  between  the  captor  and  the  owner  of  the  captured 
Trial.  vcsscl  and  cargo,  is  finally  settled.  But  the  right  of 
protection,^  which  a  State  exercises  over  its  subjects 
and  their  property  abroad,  may  nevertheless  give  rise  to 
diplomatic  protests  and  claims  on  the  part  of  the  neutral 
home  State  of  a  condemned  vessel  or  cargo,  in  case  the 
verdict  of  the  Prize  Courts  is  considered  to  be  not  in 
accordance  with  International  Law,  or  formally  or 
materially  unjust.  It  is  through  such  protests  and 
claims  that  the  matter,  which  was  hitherto  a  mere 
municipal  one,  becomes  of  international  importance. 
History  records  many  cases  in  which  neutral  States 
have  intervened  after  trials  of  vessels  which  had  sailed 
under  their  flags.  Thus,  for  instance,  in  the  famous 
case  of  the  Silesian  loan,^  it  was  because  Frederick  ii. 
of  Prussia  considered  the  procedure  of  British  Prize 
Courts  regarding  a  number  of  Prussian  merchantmen 

^  [1920]  p.  177.  »  See  above,  §  37. 

*  See  above,  vol.  i.  §  319. 


TRIAL   OF   CAPTURED   NEUTRAL   VESSELS  ^633 

captured  during  war  between  Great  Britain  and  France 
in  1747  and  1748  as  unjust,  that  in  1752  he  resorted  to 
reprisal  and  sequestrated  the  payments  of  the  interest 
on  the  Silesian  loan.  The  matter  was  settled  ^  in  1756, 
through  the  payment  of  £20,000  as  indemnity  by  Great 
Britain.  Again,  after  the  American  Civil  War,  Articles 
12-17  of  the  Treaty  of  Washington^  provided  that 
three  commissioners  should  be  appointed  for  the  pur- 
pose, amongst  others,  of  deciding  all  claims  against 
verdicts  of  the  American  Prize  Courts.  Again,  when 
in  1879,  during  war  between  Peru  and  Chili,  the  German 
vessel  Luxor  was  condemned  by  the  Peruvian  courts, 
Germany  interposed  and  the  vessel  was  released.^ 

'  See  Martens,  Causes  ceh^bres,  ii.  ^  See  Martens,  jV.i^.C.,  xx.  p.  698, 

p.  167,  and  Satow,  The  Silesian  Loan       and  Satow,  op.  cit.,  p.  198. 
and  Frederick  the  Great  (1915).  ^  See  above,  §  404. 


CHAPTER  VII 

THE   PKOPOSED   INTERNATIONAL  PRIZE   COURT 

I 

PROPOSALS   FOR  INTERNATIONAL  PRIZE  COURTS 

Westlake,  ii.  pp.  317-324— Geffcken  in  Holtztndorff,  iv.  pp.  785-788— Boeck, 
Nos.  743-766— Dupuis,  No.  289,  and  Guerre,  Nos.  224-231— Higgins, 
pp.  432-435— L6monon,  pp.  280-293— Nippold,  i.  §  15— Trendelenburg, 
Lilcken  im  Volkerrecht  (1870),  pp.  49-50— Gessner,  Kriegfiihrende  und 
neutrale  Mdchte  (1877),  pp.  52-58 — Pohl,  Deutsche  Prisengerichtsbarkeit 
(1911),  pp.  47-96— Schramm,  §  18— Wehberg,  §  9— Bulmerincq  and 
Gessner  in  R.I.,  xi.  (1879),  pp.  173-191,  and  xiii.  (1881),  pp.  260-267. 

Early  s  438.  Numerous  inconveniences  must  naturally  result 

from  the  condition  of  International  Law  which  has 
hitherto  prevailed,  according  to  which  the  courts  of 
the  belHgerent  whose  forces  have  captured  neutral 
vessels  exercise  jurisdiction  without  any  control  by 
neutrals.^  Although  neutrals  frequently  interfere  after 
trial  and  succeed  in  obtaining  recognition  for  their 
claims  in  spite  of  the  judgments  of  Prize  Courts,  great 
dissatisfaction  has  long  been  felt,  and  proposals  have 
been  made  for  so-called  mixed  Prize  Courts. 

The  first  proposal  of  this  kind  was  made  in  1759  by 
Hiibner,^  who  suggested  a  Prize  Court  composed  of 
judges  nominated  by  the  belHgerent  and  of  consuls  or 
councillors  nominated  by  the  home  State  of  the  cap- 
tured neutral  merchantmen.  A  number  of  other  pro- 
posals^  followed   during   the   eighteenth   century.     A 

^  See  above,  §  437.  see  Reddie,  Reaearchea,  i.  pp.  291- 

*  De  la  Saiaie  de  Bdtiments  neutres  305. 

(1759),  vol.  ii.   p.    21.     On  Hiibner,  ^  See  Pohl,  op.  cit.,  pp.  64-70. 
6S4 


PROPOSALS   FOR   INTERNATIONAL  PRIZE   COURTS      ,635 

proposal  somewhat  similar  to  that  of  Hiibner  was  made 
by  Tetens  ^  in  1805,  and  several  others  were  made 
during  the  nineteenth  century. 

In  1875  the  Institute  of  International  Law  took  up 
the  matter,   appointing,   on   the  suggestion  of  West- 
lake,  at  its  meeting  at  the  Hague,  a  commission  for 
the  purpose  of  drafting  a  Projet  d' Organisation  d'un 
Tribunal   international   des   Prises   maritimes.     In   the 
course  of  time  there  were  mainly  two  proposals  before 
the    Institute,    Westlake's    and    Bulmerincq's.     West- 
lake  proposed  ^  that  courts  of  appeal  should  be  insti- 
tuted in  each  case  of  war,  and  that  each  court  should 
consist  of  three  judges — one  to  be  nominated  by  the 
belhgerent  concerned,  one  by  the  home  State  of  the 
neutral  prizes  concerned,  and  the  third  by  a  neutral 
Power  not  interested  in  the  case.     According  to  West- 
lake's  proposal  there  would  therefore  have  to  be  in- 
stituted in  every  war  as  many  courts  of  appeal  as  there 
were  neutrals  concerned.     Bulmerincq  proposed  ^  that 
two  courts  should  be  instituted  in  each  war  for  all 
prize  cases,  the  one  to  act  as  Prize  Court  of  First  In- 
stance, the  other  to  act  as  Prize  Court  of  Appeal,  and 
each  consisting  of  three  judges,  one  appointed  by  each 
belhgerent,  and  the  third  by  all  neutral  maritime  Powers 
acting  in  concert.     Finally,  the  Institute  agreed,  at  its 
meeting  at  Heidelberg  in  1887,  upon  a  proposal,^  under 
which  at  the  beginning  of  a  war  each  belhgerent  would 
institute  a  court  of  appeal  consisting  of  five  judges,  the 
president  and  one  of  the  other  judges  being  appointed 
by  the  belhgerent,  and  the  other  three  being  nominated 
by  three  neutral  Powders,  and  this  court  would  be  com- 
petent for  all  prize  cases. 

^  Considerations  sur  les  Droits  re-  ^  See   R.I.,    xi.    (1879),    pp.    191- 

ciproqucs  des  Puissances  belligdrantes  194. 
et  des  Puissances  neutres  sur  Mer,  etc. 

(1805),    p.    163.        On    Tetens,    see  "  §g    100-109   of   the    '  R^glement 

Reddie,  Researches,  ii.  pp.  l.SO-231.  international  des  Prises  maritimes,' 

*  See  Annuaire,  ii.  (1878),  p.  114.  Annuaire,  ix.  (1888),  p.  239. 


636  PROPOSED    INTERNATIONAL   PRIZE   COURT 

No  further  step  was  taken  during  the  nineteenth 
century.  But,  during  the  South  African  War,  the 
comaction  became  general  that  the  exclusive  juris- 
diction of  belhgerents  over  captured  neutral  vessels 
was  incompatible  with  the  modern  conditions  of  the 
oversea  commerce  of  neutrals.  At  the  Second  Hague 
Conference  of  1907,  therefore,  Germany  and  Great 
Britain  each  brought  forward  a  project  for  a  real  Inter- 
national Prize  Court. 
German        8  439.  The  German  project  ^  was  that  national  Prize 

Project  of  . 

1907.  Courts  should  only  be  competent  in  the  first  instance, 
and  that  every  appeal  should  go  to  the  International 
Prize  Court,  which  should  be  competent,  not  only  in 
case  of  capture  of  neutral  vessels,  but  in  every  case  of 
capture  of  merchantmen.  At  the  beginning  of  every 
war  an  International  Prize  Court  was  to  be  estabhshed  ; 
in  case  there  were  more  than  two  parties  to  a  war,  as 
many  International  Prize  Courts  were  to  be  estabhshed 
as  there  were  couples  of  States  fighting  against  each 
other.  Each  court  was  to  consist  of  five  judges  sitting 
together,  three  of  whom  were  to  be  members  of  the  Per- 
manent Court  of  Arbitration  at  the  Hague,  and  two 
admirals.  The  admirals  were  to  belong  to  the  navies 
of  the  belhgerents,  but  the  three  members  of  the  Per- 
manent Court  of  Arbitration  were  to  be  chosen  by 
neutral  Powers,  each  belhgerent  authorising  one  neutral 
Power  to  select  one  member,  and  these  two  neutrals 
appointing  a  third  neutral  Power  to  select  the  third 
member.  Each  belhgerent  and  the  owners  of  cap- 
tured vessels  or  cargoes  were  to  have  the  right  to 
bring  an  appeal  before  the  court. 
British  §  440.  The  British  project  ^  was  as  follows  :  The 
^  roject  o  jj^^gj-j^a^ional  Prizc  Court  was  to  be  competent  in  such 
cases  only  as  directly  concerned  a  neutral  Power  or 

^  Deuxi^me  Confdrence,  Actes,  ii.  p.  1071. 
*  Ibid.,  p.  1076. 


PROPOSALS   FOR   INTERNATIONAL   PRIZE    COURTS       637 

its  subjects,  and  had  already  been  decided  by  'the 
highest  national  Prize  Court  of  the  belhgerent  con- 
cerned. Neutral  Powers  only,  and  not  their  subjects, 
were  to  have  the  right  to  enter  an  appeal,  and  to 
represent  their  subjects  in  a  prize  case.  In  contra- 
distinction to  the  German  project,  the  British  draft 
proposed  the  establishment  of  a  permanent  Inter- 
national Prize  Court,  of  which  each  Power  whose 
mercantile  marine  at  the  date  of  the  signature  of  the 
proposed  convention  exceeded  a  total  of  800,000  tons, 
might  nominate  a  prominent  jurist  as  a  member  and 
another  as  his  deputy.  The  President  of  the  court 
was  to  be  nominated  by  the  signatory  Powers  in  their 
alphabetical  order.  If  a  legal  question  was  to  be 
decided  which  had  already  been  provided  for  in  a  con- 
vention between  the  parties  in  dispute,  the  court  was 
to  base  its  decision  upon  it.  In  the  absence  of  such 
a  convention,  if  all  civihsed  nations  were  agreed  on  a 
point  of  legal  interest,  the  court  was  to  base  its  decision 
thereon ;  otherwise  it  was  to  decide  according  to  the 
principles  of  International  Law. 

§441.  The  Second  Hague  Conference,  after  having  Conven- 
discussed  the  German  and  British  projects,  produced  oUhe"' 
Convention  xii.   relative  to  the  Estabhshment  of  an  Second 

.  Hague 

International  Prize  Court  which,  on  the  whole,  followed  Confer- 
more  closely  the  Hnes  of  the  British  project,  but  in-  ^^^^' 
eluded  several  features  of  the  German  project,  and 
others  which  originated  in  neither.  The  convention 
was  signed  by  all  the  Powers  represented  at  the  con- 
ference, except  Brazil,  China,  Domingo,  Greece,  Luxem- 
burg, Montenegro,  Nicaragua,  Eoumania,  Russia, 
Serbia,  and  Venezuela  ;  but  ten  States — namely,  Chih, 
Cuba,  Ecuador,  Guatemala,  Haiti,  Persia,  Salvador, 
Siam,  Turkey,  and  Uruguay — entered  a  reservation 
against  Article  15  because  they  did  not  agree  with  the 
principle  of  the  composition  of  the  court  embodied  in 


638  PROPOSED   INTERNATIONAL  PRIZE   COURT 

it.  Moreover,  none  of  the  Powers  had  ratified  the 
convention  before  the  outbreak  of  the  World  War,  and 
no  International  Prize  Court  was  estabhshed  during 
that  war.  Nevertheless,  it  is  of  interest  to  give  some 
details  of  the  proposals. 


II 

THE   HAGUE   PROJECT   FOR  AN   INTERNATIONAL 
PRIZE    COURT 

Westlake,  ii.  pp.  317-324— Lawence,  §  192— Hershey,  Nos.  525-531— UU- 
mann,  §  196— Bonlils,  Nos.  1440^-1440^— Despagnet,  Nos.  683-683  bis— 
Nys,  iii.  pp.  714-736 — Fiore,  Code,  Nos.  1915-1924— Dupuis,  Gxi^rre, 
Nos.  232-276 — Bernsten,  §  14 — L6monon,  pp.  293-335 — Higgins,  pp. 
435-444 — Barclay,  Problems,  pp.  105-108 — Scott,  Conferences,  pp.  466- 
511— NippoM,  i.  §§  16-19— Fried,  Die  zweite  Haager  Konferenz  (1908), 
pp.  121-130 — Lawrence,  International  Problems  (1908),  pp.  132-159 — 
Hirschmann,  Das  Internationale  Prisenrecht  (1912),  §§  39-41 — Pohl, 
Deutsche  Prisengerichtsbarkeit  (1911),  pp.  103-211— Schramm,  §§  18-19— 
Wehberg,  §  9— Gregory,  White,  and  Scott  in  A.J.,  ii.  (1908),  pp.  458- 
475,  and  490-506,  and  v.  (1911),  pp.  302-324— Donker  Curtius  in  R.I., 
2nd  Ser.  xi.  (1909),  pp.  5-36. 

The  §  ^2.  The  International  Prize  Court  w^hich  the  un- 

Court.  ratified  Hague  Convention  xii.  proposed  to  set  up  was 
to  consist  of  judges  and  deputy  judges  appointed  by 
the  contracting  Powers  from  among  jurists  of  known 
proficiency  in  maritime  International  Law,  and  of  the 
highest  moral  reputation.  Each  Power  might  appoint 
one  judge  and  one  deputy  for  a  period  of  six  years.  The 
judges — and  the  deputies  when  taking  the  places  of 
judges — were,  when  outside  their  own  country,  to  be 
granted  diplomatic  privileges  and  immunities  in  the 
performance  of  their  duties ;  and  might  not,  during 
their  tenure  of  office,  appear  as  agent  or  advocate 
before  the  court,  nor  act  for  one  of  the  parties  in  any 
capacity  whatever. 

The  judges  so  appointed  were  not,  as  a  body,  to 
decide   the   appeal   cases   brought   before   the   court. 


HAGUE  PROJECT  FOR  INTERNATIONAL  PRIZE  COURT      639 

From  among  them  a  deciding  tribunal  was  to  be  forfned 
composed  of  fifteen  judges,  nine  of  whom  were  to  con- 
stitute a  quorum.  A  judge  who  was  absent  or  pre- 
vented from  sitting  was  to  be  replaced  by  a  deputy. 
The  judges  appointed  by  Great  Britain,  Germany,  the 
United  States  of  America,  Austria-Hmigary,  France, 
Italy,  Japan,  and  Russia  were  always  to  sit,  but  the 
judges  appointed  by  the  remaining  contracting  Powers 
were  only  to  sit  in  rotation.  If  a  belhgerent  Power  had, 
according  to  the  rota,  no  judge  sitting  in  the  deciding 
tribunal,  it  was  to  have  a  right  to  demand  that  the 
judge  appointed  by  it  should  take  part  in  the  settlement 
of  all  cases  arising  from  the  war.  No  judge  might  sit 
who  had  been  a  party  to  the  judgment  of  the  national 
Prize  Court  under  appeal. 

The  belligerent  captor,  and  also  a  neutral  Power 
which  was  herself,  or  whose  national  was,  a  party, 
might  appoint  a  naval  officer  of  high  rank  to  sit  as 
Assessor,  but  he  was  to  have  no  voice  in  the  decision. 

The  seat  of  the  deciding  tribunal  was  to  be  at  the 
Hague. 

§  443.  The  general  principle  underlying  the  pro-  Com- 
posals  of  Convention  xii.  concerning  the  competence  ^^  ^"°^' 
of  the  court  was  that  on  the  whole,  although  not  exclu- 
sively, it  was  to  be  competent  in  cases  where  neutrals 
were  directly  or  indirectly  concerned.  The  International 
Prize  Court  was  to  be,  as  a  rule,  a  court  of  appeal,  and 
all  prize  cases  had,  in  the  j&rst  instance,  to  be  decided 
by  a  national  Prize  Court  of  the  captor.  However, 
should  the  national  courts  fail  to  give  final  judgment 
within  two  years  from  the  date  of  capture,  the  case 
might  be  carried  direct  to  the  International  Prize 
Court. 

An  appeal  against  the  judgments  of  national  Prize 
Courts  might  be  brought  before  the  international  court : 
(1)  when  the  judgment  concerned  the  property  of  a 


640  PROPOSED   INTERNATIONAL   PRIZE   COURT 

neutral  Power  or  a  neutral  individual ;  (2)  when  the 
judgment  concerned  enemy  property  and  related  to 
(a)  cargo  on  board  a  neutral  vessel,  (6)  an  enemy  vessel 
captured  in  the  territorial  waters  of  a  neutral  Power, 
provided  that  it  had  not  made  the  captm-e  the  subject 
of  a  diplomatic  claim,  and  (c)  a  claim  based  upon  the 
allegation  that  the  seizure  had  been  effected  in  viola- 
tion, either  of  the  provisions  of  a  convention  in  force 
between  the  belligerent  Powers,  or  of  an  enactment 
issued  by  the  belligerent  captor.  In  any  case,  the 
appeal  might  be  based  on  the  ground  that  the  judg- 
ment was  wrong  either  in  fact  or  in  law. 

The  following  Powers  and  individuals  were  to  be 
entitled  ^  to  appeal. 

(1)  Neutral  Powers,  if  the  judgment  injuriously 
affected  their  property  or  the  property  of  their  subjects, 
or  if  the  capture  was  alleged  to  have  taken  place  in 
their  territorial  waters. 

(2)  Neutral  individuals,^  if  the  judgment  injuriously 
affected  their  property.  But  the  home  State  of  such 
an  individual  might  intervene  and  either  forbid  him 
to  bring  the  appeal,  or  itself  undertake  the  proceedings 
in  his  place. 

(3)  Subjects  of  the  enemy,  if  the  judgment  injuri- 
ously affected  their  cargoes  on  neutral  vessels,  or  if 
it  injuriously  affected  their  property  in  case  the  seizure 
was  alleged  to  have  been  effected  in  violatiou,  either  of 
the  provisions  of  a  convention  in  force  between  the 
belhgerent  Powers,  or  of  an  enactment  issued  by  the 
belhgerent  captor. 

(4)  Subjects  of  neutral  Powers  or  of  the  enemy 
deriving  rights  from  such  individuals  as  were  them- 
selves quahfied  to  appeal,  provided  they  had  taken 
part  in  the  proceedings  of  the  national  court  or  courts. 

^  But  note  Article  51  of  Convention  xii. 
^  See  above,  vol.  i.  §  289. 


HAGUE  PROJECT  FOR  INTERNATIONAL  PRIZE  COURT      641 

(5)  Subjects  of  neutral  Powers  or  of  the  enemy 
deriving  rights  from  a  neutral  Power  whose  property- 
was  the  subject  of  the  judgment,  provided  that  they 
had  taken  part  in  the  proceedings  of  the  national 
court  or  courts. 

§  444.  As  regards  the  law  to  be  apphed  by  the  pro-  wimt 
posed  International  Prize  Court,  Article  7  contained  applied, 
the  following  provisions  and  distinctions  : — 

(1)  If  a  question  of  law  to  be  decided  was  covered 
by  a  treaty  in  force  between  the  belhgerent  captor 
and  a  Power  which  was  itself,  or  whose  subject  was, 
a  party  to  the  proceedings,  the  court  had  to  apply 
the  provisions  of  that  treaty. 

(2)  In  absence  of  such  a  treaty,  the  court  had  to 
apply  the  rules  of  International  Law. 

(3)  If  there  were  no  generally  recognised  rules  of 
International  Law  which  could  be  apphed,  the  court 
had  to  base  its  decision  on  the  general  principles  of 
justice  and  equity. 

(4)  If  the  ground  of  appeal  was  the  violation  of  an 
enactment  issued  by  the  belligerent  captor,  the  court 
had  to  apply  such  enactment. 

(5)  The  court  was  to  be  empowered  to  disregard 
failure  on  the  part  of  an  appellant  to  comply  with  the 
procedure  laid  down  by  the  Municipal  Law  of  the 
belhgerent  captor,  if  it  was  of  opinion  that  the  conse- 
quences of  such  Municipal  Law  were  unjust  or  in- 
equitable. 

§  445.  The  proceedings  before  the  International  Prize  Proceed- 
Court  were  to  comprise  two  distinct  phases,  namely,  'j^d^""^ 
written  pleadings  and  oral  discussion.  ™«°*- 

(1)  The  written  fleadings  were  to  consist  of  the 
deposit  and  exchange  of  cases,  counter-cases,  and,  if 
necessary,  of  rephes,  and  to  these  pleadings  all  papers 
and  documents  which  the  parties  intended  to  use  had 
to  be  annexed. 

VOL.  II.  2  s 


642  PROPOSED   INTERNATIONAL  PRIZE   COURT 

(2)  After  the  close  of  the  pleadings  the  court  was 
to  fix  a  day  for  a  public  sitting  at  which  the  discussion 
was  to  take  place.  The  parties  were  then  to  state 
their  views  both  as  to  the  law  and  as  to  the  facts, 
but  the  court  might  at  any  stage  suspend  the  speeches 
of  counsel  in  order  that  supplementary  evidence  might 
be  obtained.  After  the  discussion  the  judgment  of 
the  court  was  to  be  given.  Questions  were  to  be 
decided  by  a  majority  of  the  judges  present ;  if  the 
number  of  the  judges  was  even  and  equally  divided, 
the  vote  of  the  junior  judge  in  the  order  of  precedence 
was  not  to  be  counted.  The  judgment  was  to  be 
taken  down  in  writing,  was  to  state  the  reasons  upon 
which  it  was  based,  give  the  names  of  the  judges  taking 
part  in  it  and  of  the  assessors,  if  any,  and  was  to  be 
signed  by  the  President  and  Registrar. 

If  the  court  pronounced  the  capture  of  a  vessel  or 
cargo  to  be  vahd,  they  might  be  disposed  of  in  accord- 
ance with  the  Municipal  Law  of  the  belhgerent  captor. 
If  the  court  pronounced  the  capture  to  be  invahd, 
restitution  of  the  vessel  or  cargo  had  to  be  ordered, 
and  the  amount  of  damages,  if  any,  had  to  be  fixed, 
especially  in  case  the  vessel  or  cargo  had  been  sold  or 
destroyed.  If  the  national  Prize  Court  had  already 
declared  the  capture  to  be  invahd,  the  International 
Prize  Court  might  only  determine  on  appeal  the  damages 
due  to  the  owner  of  the  captured  vessel  or  cargo. 
Action  in  §  446.  Accordiug  to  the  constitution  of  the  United 
SsS'^of  States  of  America,  and  probably  that  of  some  other 
Appeal.^  States,  no  appeal  may  be  brought  against  a  judgment 
of  their  highest  courts.  These  States  could  not,  there- 
fore, in  any  case,  ratify  Convention  xii.  or  take  part 
in  the  establishment  of  the  International  Prize  Court 
without  previously  altering  their  constitution.     As  such 

^  8ee  Scott  in  J!./.,  V.  (1911),  pp.        seiKjerichUharkeit  (1913),  pp.    18-65, 
302-324;  Butte,  Amerikaniiche  Pri-       and  in  A.J.,  vi.  (1912),  pp.  799-829. 


HAGUE  PROJECT  FOR  INTERNATIONAL  PRIZE  COURT      613 

alteration  would  be  a  very  complicated  and  precarious 
matter,  the  Naval  Conference  of  London  of  1908-1909 
agreed  to  call  the  attention  of  the  Governments  to  the 
advantage  of  concluding  an  arrangement  according  to 
which  the  States  involved  in  such  constitutional  differ- 
ences would,  in  depositing  their  ratifications,  have 
power  to  add  a  reservation  to  the  effect  that  the  right 
of  recourse  to  the  International  Prize  Court  in  connec- 
tion with  decisions  of  their  national  courts,  should 
take  the  form  of  a  direct  action  for  damages,  provided, 
however,  that  this  reservation  should  not  impair  the 
rights  guaranteed  by  Convention  xii.  to  private  indi- 
viduals as  w^ell  as  to  Governments, 

To  carry  out  this  recommendation,  Great  Britain, 
Germany,  the  United  States  of  America,  Argentina, 
Austria-Hungary,  Chili,  Denmark,  Spain,  France,  Japan, 
Norway,  Holland,  and  Sw^eden  signed  on  September 
19,  1910,  at  the  Hague  an  Additional  Protocol  ^  to 
the  convention  relative  to  the  establishment  of  an 
International  Prize  Court.  According  to  Article  1  of 
the  protocol.  States  prevented  by  difficulties  of  a  con- 
stitutional nature  from  accepting  Convention  xii.  in 
its  unaltered  form,  were  to  have  the  right,  in  ratifying 
the  convention  or  acceding  to  it,  to  declare  that  in 
prize  cases  over  which  their  national  courts  had  juris- 
diction, recourse  to  the  International  Prize  Court 
might  only  be  had  in  the  form  of  an  action  in  damages 
for  the  injury  caused  by  the  capture.  If  such  a  declara- 
tion were  made  the  procedure  in  the  International 
Prize  Court  was  to  be  modified  as  pro\aded  in  the 
protocol. 

§  447.  The  very  wide  powers  proposed  to  be  given  Present 
to  the  court  vnth.  regard  to  the  law  to  be  applied  by  o{°the°" 
it  led  the  Powers  to  convene  the  Naval  Conference  of  Hague 

Project. 

*  Sharply   criticised    by  Butte  in        Amiril-anische    Prisengerichtabarkeit 
A.J.,  vi.  (1912),  pp.  799-829,  and  in       (1913),  pp.  18-65. 


644  PROPOSED   ESTFERNATIONAL  PRIZE   COURT 

London  of  1908-1909  to  formulate  a  code  of  prize  law. 
But  that  code,  embodied  in  the  Declaration  of  London, 
was  not  ratified ;  and  until  some  such  code  has  been 
agreed  upon  and  ratified,  there  is  no  hope  of  seeing  an 
International  Prize  Court  estabhshed.  With  the  Declara- 
tion of  London  fell  also  Hague  Convention  xii.  and 
the  Additional  Protocol.  The  World  War  was  fought 
without  any  International  Prize  Court.  Whether  any 
further  steps  will  ever  be  taken  with  regard  to  the 
Hague  project  time  alone  can  show. 


INDEX 


Ahoukir,  case  of  the,  478 
Abuse  of  Hag  of  truce,  311-312 

of  neutral  asyluni,  469-471 
Abyssinian  War : 

hostile  destination  of  goods  during, 

573 
trial  of  neutral  vessels  after  con- 
clusion of  peace,  631 
Acts  of  force  initiative  of  war,  141-142 
Adams,  case  of  the,  500 
Admiralty,  origin  of  Board  of,  270 
Aerial     warfare.      See  Aircraft  and 

balloons 
Aircraft  and  balloons  : 
bombardment  by,  220 
conditional  contraband,  574 
espionage  from,  224 
explosives  dropped   from,    73,   89, 

172,  258,  299 
hospitals  bombed  by,  180 
invasion  by,  233 
legal  position  of,  300 
neutrals  and,  463-464 
salvage  of,  by  neutrals,  478,  479 
use  of,  in  World  War,  300-302 
visit  and  search  of  neutral  vessels 
by,  605,  609 
Alabama,  case  of  the,  453-456 
Alaska  Boundary  dispute  (1903),  19 
Alexander  I.  of  Russia  exacts  oath  of 

allegiance  in  Finland,  231 
Alexander  II.  of  Russia,  and  laws  of 

war,  87-88 
Alexia,  case  of  the,  46 
Aliens.     See  also  Enemy  aliens 
Aliens  Restriction  Acts,  122 
Allegiance,  oath  of,  196,  231,  238 
Alverstone,  Lord,  19 
Ambulances.      See  Convoy  of  evacua- 
tion ;  Land  warfare 
American  Civil  War  : 

blockade  in,   511,    522,    525,    527, 
531,  539 

ingress  and  egress  of   neutral 
warships  during,  512,  514 
contraband  in,  555,  567,  569 
neutral  asylum  during,  466,  500 
political  agents  on  neutral  vessel, 
590,  599 


American  Civil  W^ar  (continued) — 
real  war,  69 

sale  of  vessels,  453-450,  481 
stone  blockade,  512 
treatment  of  prizes  in,  274,  633 
American- English  War  (1812) : 
capture  in  neutral  port,  498 
destruction  of  neutral  prizes,  274 
reprisals,  338 
American  War  of  Independence  : 
convoyed  vessels  during,  607 
espionage,  224 
reprisals,  338 
sale  of  vessels  to  belligerents,  480- 

481 
treatment  of  prizes  during,  274 
Amicable  settlement  of  State  differ- 
ences.    See  State  differences 
Amiens,  Peace  of  (1802),  306 
Ammunition.     See  Arms  and  ammuni- 
tion 
Amnesty,  368-370 
Ancona,  case  of  the,  002 
Andr6,  Major,  case  of,  224 
Andrew  Welch,  case  of  the,  476 
Angary  : 

derivation  of  right  of,  509 
exercise  of  right  of,  424,  581 
compensation  for,  507,  508 
modern  right  of,  500-509 
original  right  of,  503 
pre-emption  of  neutral  goods  under 
right  of,  509 
Anne,  Empress  of  Russia,  48 
Anspach,    troops  marched    through, 

434 
Antivari,  blockade  of,  55 
Antwerp,  fall  of,  462 
Appam,  case  of  the,  442 
Arbitration.      .S'ee    International   ar- 
bitration 
Area  of  operations  during  blockade, 

533 
Argentina,    blockades    of    1838   and 

1845,  54 
Armed  Neutrality.     See  First  Armed 
Neutrality  ;  Neutrality  ;  Second 
Armed  Neutrality 
Armistices : 

character  of,  320 
commencement  of,  327 

tS45 


646 


INTERNATIONAL   LAW 


Armistices  {continued) — 

competence  to  conclude,  324 

contents  of,  325-327 

end  of,  329 

form  of,  325 

general,  321,  323 

hostilities,  cessation  of,  during,  320, 

326 
intercourse  during,  326 
kinds  of,  320,  321 
lines  of  demarcation  during,  327 
partial,  323 

permissible  acts  during,  325-326 
purpose  of,  321 
ratification  of,  324 
revictualling  during,  326 
suspension    of    arms  during,    321. 

324 
violation  of,  328 

by  private  indi\-idual,  329 
visitation  of  neutral  vessels  during, 
320,  605 
Arms    and    ammunition.       See    also 
Expanding    bullets ;      Explosive 
bullets ;  Poison  gas  ;  Projectiles  ; 
Torpedoes 
contraband,  548 
destruction  of,  214 
destruction  of  factories,  213 
neutrality  and  supply  of,  448,  480 
Arnold,  General,  at  West  Point,  224 
Arret  de  prince,  50 
Asgill,  Captain,  case  of,  338 
Asia  Minor,  blockade  of,  622,  539 
Askold,  case  of  the,  449 
Assault,  216-218 
Asta,  case  of  the,  624 
Asylum.     See  Neutral  asylum 
Athens,   ancient   law  of,   concerning 

reprisals,  47 
Attack  on  enemy  vessels.    See  Enemy 

vessels 
Aube,    Admiral,    on    naval    warfare, 

293 
Augusta  Victoria,  case  of  the,  432 
Aiirorn,  case  of  the,  470 
Austrian  Legation,  confiscation  of  seat 

of,  336 
Austrian  Peace  Treaty,  362 
Avmi-Illa,  case  of  the,  296 

B 

Bahama    Islands,    access   refused    to 

belligerent  warships  at,  466 
Balkan  War,  armistice  during,  322 
illegitimate  acts  in,  332,  335 
repairs    to   man-of-war  in   neutral 
port,  449 
Balloons.     See  Aircraft  and  balloons 


Baltic  Sea,  asserted  neutralisation  of, 

98 
Barbarous  forces,  107 
Barge,  arbitration  award  of  Mr.,  21 
Basle,  office  for  volunteers  at,  444 
Bathurst,  Lord,  reprisal  by,  338 
Beare,   Lieut.,   rescue   of,   by  Dutch 

fishing  boat,  478 
Beasts  of  burden  as  contraband,  553 
Belf  ort : 

capitulation  of,  316 
siege  of,  219,  321 

suspension  of  arms  during  siege  of, 
321 
Belgium,  division  of,  during   World 
War,  237 
German  attack  on,  during  World 

War,  95 
neutralisation    of,    394,    437,   458, 
i  482 

I  Belligerents.     See  also  Enemy  terri- 
I  tory,    occupation  of  ;  Merchant- 

I  men  ;    Private  enemy  property  ; 

j  Prize  Courts  ;  Trading  with  the 

j  enemy 

I      accessory,  102 

angary,  right  of,  exercised  by,  503- 
510 
I      appropriation  of  property  by,  197- 
I  211 

j       armed  forces  of,  103-115 
j      asylum  granted  to,  456-479 
barbarous  forces  as,  107 
capture  of  neutral  vessels  by,  618- 

626 
complaints  of  illegitimate  warfare 

by,  332 
conduct  in  general  of,  419 
Czecho-Slovaks  recognised  as,  dur- 
ing World  War,  101 
deserters,    treatment   of,    by,    115, 

369 
duties  of,  419-428 
impartiality    of   neutrals   towards, 

401,  422-424 
insurgents  as,  69,  101 
intercourse    between    subjects   of, 
153-157,  305,  367 

and  neutrals,  404,  424,  427,  481 
irregular  forces  of,  105 
levies  en  masse  of,    106,    174,   215, 

346 
loans  to,  by  neutrals,  484-487 
military  operations  by  and  against, 

428-442 
military      preparations      by      and 

against,  442-456 
naval  base  on  neutral  territory  for- 
bidden, 446-451,  467 
navies  of,  104,  109-113 


rNDEX 


647 


BoUij^ercntH  {continued} — 
neutralised  Stiitea  as,  DD-lOO 
neutrality    to    be    reoogniscil    by, 

40G-408 
neutrals  to  be  notified  of  outbreak 

of  war  l)y,  140,  413 
non-conibaUmts  witli  armed  forces 

of,  104,  173,  191,  282 
non-hostile  relations  of,  303-320 
occupation  of  neutral  territory  by, 

438 
principal,  102 

privateers  of,  109,  113,  394,  412 
Prize  Courts  of,  439 
property  in  enemy  State  of  subjects 

of,  157,  204 
qualification  to  become,  68-69,  99 
regular  armies  of,  104 
rights  of,  419-428 
services  to,  175,  204,  238,  487-493 
subjects    of,    on   enemj'    territoiy, 

147-152 
supplies  to,  by  neutrals,  415,  447, 

451-456,  480-487 
transfer  of  war  vessels  bj',  133 
trial  of  captured  neutral  vessels  1)}', 

626-633 
vassal  States  as,  100 
violation    of    neutrality    by,   480, 

493-503 
visitation   of   neutral    vessels    by, 

482,  604-618 
volunteer  Heets  of,  109-113 
Bentinck,  promise  of,  to  Genoa,  315 
Berlin : 

Congo  Conference  of  (1885),  96,  97 
Decrees  of  (1806),  393,  515 
Treaty  of  (1878),  364 
Bernadotte,  434 
Bernsdorlf,       Count,       safe  -  conduct 

granted  to,  306,  590 
Bismarck  : 

act  of  reprisal  by,  339,  350 
on   crews   of    captured    merchant- 
men, prisoners  of  war,  281,  339, 

350 
on   diplomatic  envoys  in   besieged 

town,  219 
on  right  of  angary,  507 
Black  Sea,  neutralisation  of,  abolished, 

96 
Blockade.     See  also  Pacific  blockade 
area,  of  operations  in,  533 
breach  of :  attempt  at,  530-534 

canals,  unblockaded  and,  536 

capture  on  account  of,  536 

consequences  of,  536-539 

definition  of,  528 

during  armistice,  320 

egress  and,  535 


Blockade  (ran tinned) —  ' 

ingress  and,  534 

neutrals  and,  403,  425 

penalty  for,  538 

practice    of    nations    regarding, 
425,  530-536 

what  constitutes  a,  530-536 
commercial,  513 
competence  to  establish,  518 
conception  of,  511-517 
contimious   voyage   and,  531,  534, 

542,  575 
contraband,  seizure  of,  during,  320 
declaration  of,  389,  518,  519-521 
Declaration  of  Pans  respecting,  86 
definition  of,  511 
elVectiveness  of  :  395,  523-528 

cessjition  of,  527 

condition  of,  524 

danger  necessary  to  create,  526 

distinguished  from  fictitious,  523 

land  batteries  and,  526 
end  of,  522 

establishment  of,  518-523 
existence  of,  528 
fictitious,  523 
institution  of,  512 
international  rivers  and,  515 
inward,  514 
justification  for,  517 
knowledge  of,  necessary  for  l)reach, 

528 
long-distance,  515 

conception  of,  539 
legality  of,  questioned,  540-542 
World  War  and,  540-544 
neutral  vessels,  time  for  egress  of, 

521 

licence  for  ingress  and  egress, 
514 
notification  of,  519-521,  528 

former    practice   of    nations   re- 
garding, 519 
outward,  514 
places  liable  to,  515 
postal  correspondence  during,  268, 

425 
settlement  of  state  dififerences  by,  5 
siege  distinguished  from,  512 
stone,  511,  526 
straits,  516 
strategic,  513 
universality  of,  514 
Bluntschli : 

on  continuous  voyage,  572 
on  courts  of  justice  during  occupa- 
tion, 245 
Board  of  Admiralty,  origin  of,  270 
Bolivia-Peruvian    Boundary   Dispute 

(1910),  20 


648 


INTERNATIONAL  LAW 


Bombardment : 

by  land  forces,  216-222 
by  naval  forces,  294-297 
Bonfils,   on  carriage   of    contraband, 

572 
Booty  on  battlefield,  185,  201,  205 
Bosphorus  and  Dardanelles,  97,  111, 

516 
Bougainville,  safe-conduct  granted  to, 

263 
Boundary  disputes : 

between  Bolivia  and  Peru,  20 
between  Great  Britain  and  U.S.A., 

18,  19,  20 
between  Great  Britain  and  Vene- 
zuela, 18 
Boundary   Treaty   of    Buenos   Ayres 
(1881)    between   Argentina    and 
Chili,  97 
Boycott.     See  Economic  boycott 
Breslau,  case  of  the,  133 
Bribery,  223,  226,  228 
Brindilla,  case  of  the,  133 
British  Foreign  Enlistment  Act.     See 

Foreign  Enlistment  Acts 
^DrussGls  ' 

Conference  of  (1874),  72,  234,  239, 

340 
Declaration  of  (1874),  88,  193 
Bryan  arbitration  treaties,  9 
Bucharest,  Treaty  of  (1886),  100 
Buenos    Ayres,    Boundary   treaty   of 
(1881),    between   Argentina   and 
Chili,  97 
Bulgaria  as  a  belligerent  while  under 
Turkish  suzerainty,  69,  100 
blockade  of,  522,  539 
Bulgarian  Peace  Treaty,  362 
Bullets,  expanding  and  explosive,  89, 

171,  172,  281 
Bulmerincq  :       proposal       regarding 

Prize  Courts,  635 
Bundetrath,    case   of   the,   568,    570, 

625 
Bureau  of  Information  in  war,  185, 

193,  304 
Bynkershoek  : 

on  contraband,  547,  578 

on    foreigners   in   enemy   country, 

120 
on  intercourse  during  war,  153 
on  neutrality,  386,  400,  470 


Cabinet  ministers,  capture  of,  176 
Cables.     See  Telegraph  cables 
Cameroons,  blockade  of,  522,  539 
Camille,  case  of  the,  481 


Cancellation   of   treaties  on   account 
of: 
violation  by  one  party,  372 
war,  145-147 
Capitulations  : 

character  and  purpose  of,  314 
competence  to  conclude,  317-319 
contents  of,  315 
distinguished  from  simple  surrender, 

314 
flag  of  truce  and,  317 
form  of,  316 
violation  of,  319 
Captain  W.  Menzel,  case  of  the,  415 
Captivity.     See  Prisoners  of  war 
Capture  of  neutral  vessels.     See  also 
Contraband  of  war 
abandonment  after,  622 
conduct  to  port  after,  620 
destruction  after,  620-624 
effect  of,  619 
grounds  of,  596,  619 
Hague  Convention  concerning,  90, 

396 
mode  of,  619 
ransom  after,  624 
recapture  after,  624 
release  after,  625 
trial  after,  271,  626-633 

after  conclusion  of  peace,  630-632 
claims  after,  632 
municipal  character  of,  626 
protests  after,  032 
result  of,  630 
Caroline,  case  of  the,  416 
Carriage  of  contraband.     See  Contra- 
band of  war 
Cartel  ships : 

rules  regarding,  313 
seizure  of,  267 
Cartels : 

definition  and  purpose  of,  305,  312 
ransom    of    soldiers    arranged   by, 
187 
Carthage,  case  of  the,  574 
Castro,  de,  dismissal  of  Dutch  minis- 
ter by,  45 
Catharine,  Empress   of   Russia,  391, 

393 
Cattaro,  access  refused  to  belligerent 

warships  at,  465 
Cavell,  Nurse,  execution  of,  347 
Ceres,  case  of  the,  389 
Cervignano,  case  of  the,  256 
Cesarewitch,  case  of  the,  470 
Cessation    of    hostilities.       See    also 
Armistices 
simple,  357-358 
Chablais  and    Faucigny,    neutralisa- 
tion of,  96 


INDEX 


649 


Chambers  of  Reunion,  the  so-called, 

68 
Charles  XII.  of  Sweden,  dictum  of, 

169 
Charleston,  blockade  of,  511,  527 
Chauvinism,  44 
China,  case  of  the,  602 
China- Japanese  War  (1894) : 

asylum     on     neutral     man-of-war 

during,  471 
Citizens.     See  Private  individuals 
Civil  war,  75-76 

commencement  of,  414 
neutrality  during,  405 
termination  of,  350 
Clinton,  Sir  Henry,  224 
Clumhtrhcdl,  case  of  the,  535 
Coal  as  contraband,  554 
Coast  fisheries,  definition  of,  266 
Coloured  troops,  108 
Columbia,  case  of  the,  432 
Commerce     during    war.       See    also 

Trading  with  the  enemy 
between  belligerents'  subjects,  153- 

157,  305 
between    subjects    of    belligerents 

and  neutrals,  388,  404,  425,  481 
Commercia  belli,  304 
Commercial  blockade,  513 
Commercial  treaty.     See  Treaties 
Commission  :  of  Arbitration,  18 

of  Inquiry,  7 
Companies.     See  Corporations 
Compensation  for :    exercise  of  right 

of  angary,  507 
neutral  cargo  on  destroyed  enemy 

vessels,  275,  276 
violations    of    the   Laws   of   War, 

330,  353-355,  369,  494 
Complaints  of  belligerents,  332,  333 
Gompromis,  28-33 
Compromise  clause,  5,  17 
Compulsive  settlement  of  State  diflFer- 

ences.     See  State  differences 
Concentration  camps,  175,  216 
Conference  of  Berlin  (1S85),  96,  97 
Conjitcantur  ex  navibus  res,  ex  rebus 

nave$,  249 
Confiscation :    at    outbreak    of   war, 

157-161,  197-201,  231,  248 
for  carrying  contraband,  578-583 
Congo  Free  State,  ceded  to  Belgium, 

97 
neutralisation  of,  97 
Congo  river,  neutralisation  of,  90 
Conquest,  359.     See  also  Subjugation 
Conscription,  72.     See  also  Levies 
Consolato    del    mare,  248,   249,   384, 

388,  605 
Consular  activity,  rupture  of,  144 


Continuous  voyage,  doctrine  ol,  251, 

531,  534,  542,  567-576 
Continuous    transport :    doctrine   of, 
251,  567-576 
partial  recognition  of,  by  Declara- 
tion of  London,  573 
Contraband    of    war.      See   also   Un- 
neutral service 
absolute,  548,    550-552,    558,   565, 

573,  575 
articles  for  use  of  carrj'ing  vessel 

not  considered,  561 
beasts  of  burden  as.  553 
carriage  of,  425,  563-584 
capture  for,  576-578 
circuitous,  566-576 
consequences  of,  576-684 
Continental  opinion  on,  572 
direct,  564 
French    ordinances    concerning, 

578 
indirect,  568-576 
neutrals  and,  403,  425,  482,  563- 

584 
penal  bj'  municipal  law,  563 
penalty  for,  578-583 
without  knowledge  of  war,  582 
coal  as,  554 
conception  of,  545-563 
conditional,  548,  552-557,  558,  566, 
574,  575 
pre-emption  of,  580-581,  583 
continuous  transports,  doctrine  of, 

251,  567-576 
cotton  as,  551,  555 
definition  of,  546 
foodstufi"s  as,  550,  553 
horses  as,  553 
hostile    destination     essential    to, 

557-560,  576 
money  as,  554 

seiziire  of,  during  blockade,  320 
seizure  of,  without  seizure  of  vessel, 

578-583 
warships  as,  452,  562 
j  Contraband  vessels,  432,  562 
1  Contract  debts,  5,  27,  51 
I  Contracts   between   subjects   of   bel- 
I  ligerents.     See  Trading  with  the 

I  enemy 

■  Contributions,  207-211,  238,  293 
Convoy  :  vessels  under  enemy,  614 
vessels     under    neutral,    606-609, 
615 
Convoy  of  evacuation,  183 
Cook,  Captain,  safe-conduct  granted 

to,  263 
Copenhagen : 

Battle  of  (1801),  392 
Treaty  of  (1830),  614 


650 


INTERNATIONAL  LAW 


Corfu,  neutralisation  of,  96,  409 
occupation  of,  during  World  War, 
431 
Corporations,    enemy   character    of, 
122-124 
shareholders  in,  123 
Cotton  as  contraband,  551,  555 
Court  of  Arbitration  at  the  Hague. 
See  Permanent  Court   of   Arbi- 
tration 
Courts  of  Justice,  during  occupation 

of  country,  243-245 
Creasy,  case  of  the,  478 
Crete  : 

blockade  of,  54,  56 
during  the  Turco-Italian  War,  94 
Crimean  War : 

asylum  to  men-of-war,  465 

blockade,  514,  515,  525,  527 

contraband,  569 

convoy,  607 

enemy  property  at  sea  under  neutral 

flag,  250 
enemy    subjects    on    belligerent's 

territory,  148 
letters  of  marque,  250 
loans,  flotation  of,  485 
merchantmen  at  outbreak  of  war, 
161,  266 
Cumberland,  case  of  the,  265 
Cyprus,  position  of  in  World  War,  94 
Cyrenaica,  annexation  of,  236,  368 
Czecho-Slovaks,    position    in    World 
War,  101 


D 


Danube,  blockade  of  the,  514,  515 

neutralisation  of,  96 
Dardanelles,  97,  111,  516 
Dead,  treatment  of  the,  184-185,  285 
Dearborn,  General,  reprisal  by,  338 
Debts.     See  Contract  debts  ;    Public 

debts 
Declaration  concerning :  difTusion  of 
asphyxiating  gases,  89,  172,  281 
expanding  (Dum-Dum)  bullets,  89, 

172,  281 
launching  of  projectiles  from  bal- 
loons, 89,  172 
Declaration : 

Brussels  (1874),  88,  193 
London  (1909),  90,  396-398 

blockade,  513-516,  518,  520-523, 

525,  527-530,  532-539 
capture  of  neutral  vessels,  621- 

623 
Conference  preceding,   117,   134, 
396,  608,  643 


Declaration  (continued) — 

contraband,   547,    549,   551-566, 
577 
penalty  for  carriage  of,   581- 
584 
doctrine  of  continuous  voyages, 

573 
enemy  character,  117,  125,  126, 

127,  128 
free  articles,  560 
sale  of  warships  by  neutrals  to 

belligerents,  452 
transfer  of  enemy  goods,  134 
transfer  of  enemy  vessels,   131- 

132 
unneutral  service,  490,  586-601 
\a8itation  of  vessels,  608,  613-618 
World  War  and,  397-398 
Paris  (1856),  57,  86,  109,  110,  113, 
146,  249-250,   257,   273,   279, 
333,  390,  395,  424,  425,   513, 
523,  524,  547,  607 
St.  Petersburg  (1868),  87,  171,281, 
302 
Declarations  of : 
blockade,  519-521 
contraband,  551,  556 
neutrality,  414 
war,  138-142 
Delagoa  Bay,  case  of,  570 
Den    Beer  Portugael,    General,    and 

rules  on  bombardment,  295 
Denmark,   treaty  by,   aS"ecting  neu- 
I  trality,  412,  432 

Swedish  territory  sold  by,  231 
Deserters,  311,  460 
Despatches : 
bearers  of,  224 
carriage  of,  for  enemy,  490,  585, 

592-594,  598-601 
right  of  sending,  219 
Dessaix,  case  of  the,  275 
Destruction  of  enemy  property  : 
arms  and  ammunition,  214 
during  bombardment,  222 
general  devastation,  215 
merchantmen,  272-276 
monuments,  214 
necessary,  212-213 
provisions,  214 
wanton,  212 
works  of  ait,  214 
Deutschland,  case  of  the,  467 
Diana,  case  of  the,  267,  449 
Dieppe,  blockade  of,  515 
Diplomacy,  82 
Diplomatic  envoys  : 
capture  of,  176 

carriage  of,  by  neutrals,  589-590, 
601 


INDEX 


^51 


Diplomatio  envoys  {coiUinued) — 
despatches  of,  490 
efifeot  of  outbreiik  of  war  on,  144 
found  on  enemy  territory  by  a  bel- 
ligerent, 424 
in  besieged  towns,  219 
letters  of  marque  granted  bj',  394 
reprisals  against,  inadmissible,  49 
Diplomatio  intercourse,   rupture   of, 

144 
Discovery,  case  of  the,  263 
Distress,  vessels  in  circumstances  of, 

267,  476,  534 
Dochrijk,  case  of  tlie,  573,  631 
Dogger  Bank,  case  of,  7,  15 
Dolxis  nan  purgatur  circiiitu,  567 
Domicile : 

character  of  goods  determined  by 

domicile  of  owner,  128 
enemy  character  acquired  by,  120 
Dominions  within  the  '  region  of  war,' 

93-94 
Drago  doctrine,  27 
Drnupner,  case  of  the,  624 
Dresden,  case  of  the,  475,  498 
Duclair,  British  coal  vessels  at,  507 
Due  diligence,  definition  of,  501 
Dumba,  Dr.,  safe-conduct  granted  to, 

306,  590 
Dum-Dum  bullets,  89,  172,  281 
Dunaiit,  Jean  Henry,  on  treatment 

of  wounded,  177 
Dupleix,  case  of  the,  98 
Dutch  East  India  squadron,  attempted 
seizure  of,  386 


E 


Economic  boycott,  61 

Efifects  of  outbreak  of  war  on  : 

belligerents'    property    on    enemy 
territory,  157-160 

belligerents'    subjects     in    enemy 
State,  147-149 

contracts,  156 

diplomatic  relations,  144 

merchantmen,  160-165 

pertona  standi  in  judicio,  150-152 

States  in  general,  143 

trade  tetween belligerents'  subjects, 
153-157 

treaties,  145-147 
Egypt  during  Turco-Ital'an  War,  94 
El  Arish,  capitulation  of,  317-319 
Elba,  case  of  the,  471 
Elisabeth,  case  of  the,  267 
Embargo : 

conception  of,  50-51 

different  kinds  of,  50 


Embargo  (conlinued) — 
instance  of,  45 
practice  of,  160,  503 
settlement  of  state  difTcrcnces  bj-,  5 
Emblems  of  : 
hospital  ships,  288-289 
medical  service  of  armies,  183 
Emdtn,  case  of  the,  292 
Ems,   exclusion    of   the    river,    from 

blockade,  515 
Enemy  aliens  : 
internment  of,  during  World  War, 

149 
legal  proceedings  by,  150  152 
partnerships    with,    dissolved    on 
outbreak  of  war,  156 
Enemy  character.     6'ee   also   Enemy 
aliens 
conception  of,  116 
corporations,  122-124 
goods,  126,  128-130 

when  transferred,  133-135 
individuals,  118-122 

enemy     subjects     domiciled     in 

enemy  country,  119-122,  128 
enemy  subjects  in  neutral  coun- 
tries, 121 
neutral    subjects    domiciled     in 

enemy  country,  119-122,  424 
neutral  subjects  serving  in  armed 

forces  of  belligerents,  118 
neutral  subjects  serving  in  police 
and     administration     of     bel- 
ligerents, 119 
neutral  rolling  stock,  489 
rule  of  1756,  126 

unneutral  service  creating,  593-596 
vessels,  124-128,  280 

when  transferred,  126,  130-133 
Enemy  convoy,  614 
Enemy  property.     Set  Public  enemy 
property ;    Private    enemy   pro- 
perty 
Enemy  territory,  occupation  of  : 
aim  of  warfare,  230 
cessation  of  hostilities  and,  358 
constructive,  235 
courts  of  justice,  position  of,  during 

243-245 
deportation  of  inhabitants  during, 

240 
duties  arising  from,  232,  236-238 
end  of,  236 

envoys'  position  during,  424 
hostages  during,  241 
neutral  propertj'  during,  424 
officials'  position  during,  242-243 
rights  arising  from,  236-242 
treatment   of   inhabitants  during, 
236-242 


652 


INTERNATIONAL  LAW 


Enemj'  territory,  occupation  of  (con- 
tinued) — 
treatment  of   subjects  of    neutrals 

during,  242,  424 
when  eflfected,  107,  233-236 
Enemy  vessels.     See  also  Merchant- 
men, enemy  ;  Neutral  asylum 
appropriation  of,  251-254,  269-280 
attack    and    seizure    of,    256-269, 

474-475 
effect  of  seizure  of,  261 
furnishing    of,    by    neutrals,    394, 

412,  415,  432,  451-456 
Hague  Convention  concerning,  161- 

165 
immunity  from  attack  granted  to, 

263-269 
in  neutral  waters,  440-442,  446-451 
legitimate  attack  on,  257 
medical  and  hospital  staff  of,  290 
neutral  goods  on,  126,  263,  615 
pilotage  of,  by  neutrals,  487 
postal     correspondence     on,     268, 

425 
quarter,  261 
religious  staff  on,  290 
sick-baj's  on,  288 
transfer  of,  130-133 
transfer  of    enemy  goods  on,   133- 
135,  280 
Envoys.     See  Diplomatic  envoys 
Escape  from  captivity,  192 
Espionage,  222-226,  291,  346 
Andr6,  Major,  case  of,  224 
distinguished    from    scouting    and 

despatch-bearing,  223 
Hale,  case  of  Captain  Nathan,  255 
punishment  of,  225,  346 
Euridice,  case  of  the,  481 
Expanding  bullets,  89,  172 
Explosive  bullets,  171,  281 


F 


Faravelli,  bombardment   of   Turkish 
vessels  in  the  harbour  of  Beirut 
by   Italian   naval    forces    under 
Admiral,  296 
Faucigny,  neutralisation  of,  96 
Fecamp,  blockade  of,  515 
Federal  States,  wars  by  members  of, 

69,  75,  101 
Fictitious  blockade,  523 
Fides  etiam  hosti  tervanda,  303 
Finland  ceded  to  Russia,  232 
Fiore  on  carriage  of  contraband,  572 
First    Armed     Neutrality,    388-390, 

410,  523,  524,  547 
First  Coalition,  394 


Fishing  boats,  immunity  from  seizure, 

265-266 
Flag  :  character  of  vessel  determined 
by,  124 
enemy  goods  carried  under  neutral, 

126,  249 
hospital  ships,  289 
transfer  of  vessels  to  neutral,  130- 

133 
use  of  false,  228,  291 
Flags  of  truce  : 

abuse  of,  229,  311-312 
bearers,  treatment  of,  309-311 
capitulations  and,  317 
land  warfare  and,  308 
meaning  of,  308 
naval  warfare  and,  308 
occasions  when  used,  308-311,  317, 
332 
Flinders,    safe-conduct    granted    to 

explorer,  265 
Florida,  case  of  the,  500 
Foch,  Marshal,  conclusion  of  armis- 
tice by,  in  World  War,  323 
Foodstuffs  as  contraband,  550,  553 
Foraging,  204 

roreign  Enlistment  Acts : 
American,  394,  415 
British,  394,  415-416,  562 
Formosa,  blockade  of,  54,  56 
Foraigtigheten;  case  of  the,  481 
Franco-British  wars : 
(1755),  pei-fidy,  292 
(1793),    property   in    enemy  State 

of  belligerents,  157 
treaty  obligations,  412 
(1803),  subjects  of  belligerents  on 
enemy  territory,  147 
Franco-German  War : 
angary,  507 

armistices,  321,  322,  326,  327 
asylum  to  belligerents,  458,  462 
belligerents'    subjects    on     enemy 

territory,  148 
blockade,  515 
bombardment,  221 
cable  laying,  491 
capitulation,  316 
complaints     to      neutral      powers 

during,  333 
courts  of  justice,  244 
diplomatic     envoys     in    besieged 

towns,  219 
franctireurs,  105 
hostages,  351 
loans,  flotation  of,  485 
merchantmen : 

appropriation  of,  252 
conversion  of,  109-110 
destruction  of,  275 


INDEX 


653 


Fninco-tTernian  War  (coutmued) — 
immunity  of,  at  outbreak  of  M-ar, 
266 
neutral  asjlum,  458,  40"2 
neutrality,  98,  408,  409,  444,  460, 

462 
passage     of      volunteers     through 

neutral  territory,  445 
passage  of  wouiideil  tluough  neutral 

territory,  4.S6-4.S7 
peace  treaty,  363,  372 
pilotage,  488 
postliminium,  377 
prisoners  of  war,  281,  371 
prizes,  275 

reprisals,  337,  339,  350 
sieges,  219 

supplies  by  neutrals,  481,  482 
suspension  of  arms,  321 
train-wrecking,  351 
unorganised  hostile  expedition,  445 
vessels  charged  with  religious  mis- 
sions, 264 
volunteer  fleet,  109-110,  333 
Franctireurs,  105 
Frankfort,    Treaty    of    (1871),    363, 

372,  377 
Frankfort-on-the-Main,    subjugation 

of,  360 
Freden,  case  of  the,  497 
Frederick  II.  of  Prussia  : 
forcible  levies  by,  231 
reprisals  by,  48,  49 
Frederikshamm,     Peace     Treaty     of 

(1809),  231 
Free  articles,  548,  549,  500-562 
French  Prize  Courts  setup  in  America, 

394,  440 
French  Revolution  and  Second  Armed 

Neutrality,  391 
Friendship   and   Commerce,   treaties 

of,  188,  251,  412,  579 
Friuli,  case  of  the,  256 
Fryatt,  Captain,  case  of,  258 
Fiirst  Bismarck,  case  of  the,  432 


G 


Gaeta,  blockade  of,  54 

Garner,     petty-officer,     rescued     by 

Dutch  fishing  boat,  479 
Oeier,  case  of  the,  449 
Gdderland,  case  of  the,  488 
General,  case  of  the,  570 
General  Armstrong,  case  of  the,  497 
Genet,  letters  of  marque  granted  by, 

394 
French    Prize    Coiu-ts    set    up    in 

America  by,  394,  440 


Geneva  :  Court  of  Arbitration,  501 

Soci6t6  d'utilit6  publique,  177 
Geneva  Convention  : 

atlaptation    of    the    principles  of, 
to    naval    warfare,   87,   89,   282- 
290 
dead,  treatment  of,  184 
general  provisions  of  the,  179 
non-combatants  and  the,  173,  434, 

462 
origin  of  the,  177 
prevention  of  abuses,  185 
prisoners  and  the,  173,  282 
voluntarj'   aid   societies    and    the, 

181-182 
wounded  and  dead   and    the,    87, 
177-185,  205,  304 
Geneva  Cross,  183,  185,  229,  289 
Genoa,  capitidation  of,  315 
German  coast,  blockade  of,  515 
German  contract  for  felling  trees  in 

French  forests,  377 
German   East    Africa,    blockade   of, 

522,  539 
German  Peace  Treaty,  362 

arraignment  of   German   Emperor 

under,  343 
cables,  rights  to,  renounced  under, 

293 
compensation  for  seizure  of  private 

property,  205 
compensation  for  violation  of    the 

laws  of  war  under,  353 
form  of,  364 

merchant  fleet  ceded  under,  164 
pre-war  contracts  under,  157 
restoration     of     public     property, 

200 
revival  of  treaties  under,  146 
rights  of  private   property  luader, 

159 
trial  of  war  criminals,  344 
Gessner  on  carriage  of  contraband, 

572 
Goehen,  case  of  the,  133 
Good  otHces : 

complaints  by  belligerents  to  neu- 
trals settled  by,  333 
duty  of  asking  for,  13 
duty  of  otTering,  12,  13 
duty  of  receiving  otfer  of,  14 
Hagne  Convention,  niles  regarding, 

13-15 
mediation  compared  with,  12 
purpose  of,  11,  361 
right  of  offering,  14 
Russo-Japanese  War  and,  15 
value  of,  5,  15 
Government   officials,  deposition   by 
enemy  of,  242 


654 


INTERNATIONAL   LAW 


Greece,  blockades  of,  47,  53,  54,  55, 
56 
neutrality  of,  during  World  War, 
410,  431,  435 
Grosiovoi,  case  of  the,  449 
Grotius,  cited  on  : 
armistices,  326,  327 
capti\'ity,  187 
contraband,  546-547 
declaration  of  war,  137 
destruction    of     enemy    property, 

214 
enemy    subjects     on    belligerent's 

territorj',  119 
neutrality,  385,  400 
Guadeloupe,  ceded  to  Sweden,  232 

restored  to  France,  232 
Guerilla  war,  76-78,  215,  235 
Gulflight,  case  of  the,  624 


H 


Hague  Conventions  concerning : 
bombardment   by  naval   forces    in 
time  of  war  (IX.),  90,  255,  294- 
297 
capture    in  maritime  war,  restric- 
tions on  the  exercise  of  the  right 
of  (XL),  90,  115,  255,  264,  265. 
268,   269,    281,    396,    425,    592, 
596 
commencement  of  hostilities  (III.), 

89,  138-142,  402,  414 

debts,  employment  of  force  for  the 
recovery  of  contract  (II. ),  27,  51 

disputes,  pacific  settlement  of  (I.), 
7,  13-15,  21,  26-34,  137 

Geneva  Convention,  adaptation  of 
the  principles  of  (X.),  89,  267, 
282,  283-290,  304,  459,  472,  479 

International  Prize  Court,  estab- 
lishment of  an  (XIL ),  272,  396, 
637,  638-644 

merchant-ships  at  the  outbreak  of 
hostilities,  status  of  enemy  (VI. ), 

90,  161-165,  255,  267 
merchant-ships,  conversion  of,  into 

war-ships  (VII.),  90,  112,  255, 
396 

mines,  laj'ing  of  automatic  sub- 
marine contact  (VIII. ),  90,  255, 
259-260,  396,  502 

neutral  Powers  and  persons  in  war 
on  land,  rights  and  duties  of 
(V.),  90,  103.  117-119,  395,  403, 
411,  416,  422,  423,  424,  429, 
433,  435,  437,  445,  459,  461, 
477,  481-482,  486,  489,  490,  492, 
509 


Hague  Conventions  concerning  (con- 
tintied) — 
neutral  Powers  in  maritime  war, 
rights  and  duties  of  (XIII. ),  90, 
396,  416,  421,  422,  423,  424, 
432,  437,  440,  441,  442,  446-452, 
455,  465,  468,  470,  476,  479, 
480,  481,  486,  492,  496,  497,  562 
war  on  land,  laws  and  customs  of, 

(IV. ),  referred  to  on  : 
angary,  exercise  of  right  of,  507 
armistices,   321,    323,    326,    328, 

329 
assault,  bombardment  and  siege, 

216-222 
booty,  201 

Bureau  of  Information,  193 
capitulations,  316,  319 
compensation,  353-355,  369,  494 
espionage,    treason,    ruses,    223- 

229,  346,  348 
flags  of  truce,  308-312 
Geneva  Convention,  87 
irregular  forces,    guerilla   bands 

and  le^nes  en  masse,  77,  105, 

106,  346 
killing  and  wounding,  169,  170 
means  of  land  warfare,  166,  170 
means    of     securing     legitimate 

warfare,    331,    334,    341,   354- 

355 
non-combatants,  104,  168 
occupation   of   enemy  territory, 

232,  234,  237-241,  243 
parole,  192 

persona  standi  injudicio,  150 
prisoners  of  war,   188,  191,  196, 

281,  370 
private  individuals,  175,  329 
property   in  enemy   State,    158, 

197-206,  212,  214,  215 
property  of  the  dead,  185,  285 
quarter  given  in,  169 
relief  societies,  193-194 
requisitions    and    contributions, 

208-211,  494,  507 
telegraph  cables,  298 
Hague   Court    of    Arbitration.      See 
Permanent  Court  of  Arbitration 
Hague  Declarations  concerning  : 
asphyxiating  gases,  prohibition  of 

use  of,  89,  172,  281 
bullets,   expanding,  prohibition  of 

use  of,  89,  172,  281 
projectiles,  prohibition  of  discharge 
of  certain,  89,  172,  258,  281 
Hague  Peace  Conferences  :  of  1899  : 
86.  87,  137,  172,  178,  252;  of 
1907  :  86,  88,  137,  173,  252,  254, 
255,  264,  265,  283,  463,  472,  636 


INDEX 


655 


Haiviun,  case  of  the,  493 
Httle,  case  of  Captain  Nathan,  225 
Hall,   on  requisitions   and   contribu- 
tions in  naval  warfare,  293 
Halleok,  on  : 

abuse  of  flaj;  of  truce,  311 

stratagems  and  perfidy,  229 
Hamidith,  case  of  the,  449 
Hanover,  subjugation  of,  3G0 
Hansa,  the,  69,  249 
Hardman,  William,  case  of,  242,  506 
Hautefeuille,  on : 

justification  of  blockade,  517 

right  of  visitation  of  neutral  vessels, 
605 
Hay-Pauncefote  Treaty  (1901),  97 
Heads  of  States  :  power  of  making 
treaties  when  prisoner,  365 

prisoners  of  war,  176 

reprisals  against,  inadmissible,  49 

vaolence  against,  169,  176 
Heffter  on  occupation  of  enemy  terri- 
tory, 232 
Heilborn,  on  war  material  on  neutral 

territory,  463 
Helicon,  case  of  the,  441 
Henfield,  Gideon,  case  of,  394 
Hertha,  case  of  the,  98 
Herzog,  case  of  the,  570,  625 
Hesse -Cassel : 

case  of  the  domains  of,  378 

subjugation  of,  360 
Hague,  case  of  the,  478 
Holland,  blockade  of,  54 

commercial  treaty  with  Portugal,  18 
Holland,  Sir  Thomas,  on  : 

armistices,  320 

bombardment,  295 

doctrine  of  continuous  voyage,  570 

indemnities,  203 

pacific  blockade,  53 

unneutral  service,  593 
Hon-kohe  Bay,  Russian  fleet  in,  451 
Hopcroft,   Lieut.,  rescued  by  Dutch 

fishing  boat,  479 
Horses  as  contraband,  553 
Hospital  ships,  267,  285-288 

abuse  of,  286-288 

emblem  of,  288-289 

status  of,  in  neutral  ports,  288 
Hostages,  175,  241,  277,  350-353 
Hostilities.     See  aLw  War 

by  and  against  neutrals,  429-431 

effect  of  simple  cessation  of,  357-358 

Hague      Convention       concerning 
opening  of,  89 

instances  of    simple   cessation  of, 
357 
Hiibner,    proposal    regarding    Prize 
Courts,  634 


Huddy,  Joshua,  case  of,  338 
I  Hungarian  Peace  Treaty,  362 
I  f/u8sar,  case  of  the,  291 


I 


lUia,  case  of  the,  471 
Indemnities  for : 

neutral  cargo  on  destroyed  enemy 

vessels,  275,  276 
neutral     innocent     cargo     on    de- 
stroyed neutral  vessels,  623 
private  property,  203,  205,  206 
right  of  angary,  507 
India,  case  of  the,  474 
Indians,  as  members  of  regular  forces, 

108 
Inflexible,  case  of  the,  311 
Inquiry  Commissions,  7 
Institute  of  International  Law  on  : 
aerial  warfare,  300 
angary,  504 
bombardment,  295 
capture,  619,  630 
carriage  of  contraband,  572 
commencement  of  war,  138 
enemy  merchantmen,  256 
insurrection,  101,  406 
laws  of  war,  88 
mines,  submarine,  260,  502 
neutrality,  455,  470 
occupation  of  enemy  territory,  240 
pacific  blockade,  55,  56,  57 
Prize  Courts,  626,  635 
prizes,  274-275 
reprisals,  340 
submarine  cables,  298 
visitation,  605,  606 
Insurgents  as  belligei-ents,  69,  101 
Intercourse.     See  also  Trading  with 
the  enemy 
between    subjects  of   belligerents, 

153-157,  305,  367 
between  subjects  of  neutrals  and 
belligerents,  404,  424,  427,  497 
International  arbitration  : 

appointment  of  arbitrator,  18,  28- 

29 
award,  19,  20,  32 

appeal  against,  20,  32-33 
binding  force  of,  19,  27,  32-33 
disputes  as  to  interpretation  of, 
32 
Bryan  treaties,  9 
competence  of  tribunal  of,  31 
compulsorj',  27-28 
conception  of,  17 
costs  of,  33 
early  use  of,  24 


656 


INTERNATIONAL  LAW 


International  arbitration  (contd. ) — 
efficacy  of,  27 
Hague     Convention,     stipulations 

concerning,  26-34 
language  to  be  used  during,  28,  30 
League  of  Nations  and,  19,  20,  23, 

25,  34-38 
minutes  concerning,  30 
Permanent  International  Court  of, 

14,  25,  29-34,  179,  636 
preliminary  proceedings  in,  30 
procedure  of  tribunal  in,  29 

rules  governing,  30 
scope  of,  21-23 
State  differences,  settlement  of,  by, 

5 
summary  procedure  in,  33 
treaties  of,  9,  17,  19,  21,  22,  23,  28 
compromise  clause  in,  5,  17 
disputes  as  to  interpretation  of, 

24 
obligations  under,  17,  27 
stipulations  of,  19 
umpire  in,  17,  33 
validity  of,  23 
value  of,  24,  26 
International  Commission  of  Inquiry  : 
Dogger  Bank  case,  7,  15 
procedure  at  an,  8-10 
International  Conference  at  the  Hague 
respecting  hospital  ships  (1904), 
288 
International     Convention     for     the 
Protection   of    Submarine   Tele- 
graph Cables,  298 
International   Court  of   Arbitration. 
See  Permanent  Court  of  Arbitra- 
tion 
International  Court  of  Justice  : 

compulsory     jurisdiction    of,    dis- 
allowed, 37 
draft  project  for  institution  of,  37 
nature  of  disputes  to  be  determined 

by,  38 
settlement    of     international    dis- 
putes by,  6,  37 
International  Postal  Union,  in  time 

of  war,  146 
International  Prize  Court : 

action  for  damages  in  the,  642-643 
competence  of  the,  599,  613,  639- 

641 
constitution  of  the,  638-639 
convention   (XII.)    for   the    estab- 
lishment of  an,  272,  396,  637 
Hague  project,  present  position  of, 

643-644 
judgment  of,  642 
law  to  be  applied  by  the,  641 
personnel  of  the,  638 


International  Prize  Court  (contd. ) — 

proceedings  before,  641-642 

projects  for  an,  634-644 

seat  of  the,  639 

tasks  for  the,  629 
International  rivers,  blockade  of,  515 
Intervention : 

conception  of,  58 

distinguished    from   participation, 
58-59 

illegitimate  warfare  and,  334 

instance  of,  430 

mode  of,  59 

right  of,  60,  334 

settlement  of  state  differences  by, 
5 

time  of,  60 
Invasion  in  contradistinction  to  occu- 
pation, 107,  233 
Investigator,  case  of  the,  265 
Invincible,  case  of  the,  311 
Ionian   Islands,    neutrality    of,    96, 

409 
Irregular  forces,  definition  of,  105 
Italian  Marine  Code  (1865),  252 
Italian  Prize  Commission,  631 


Jakoga,  Major  Shozo,  case  of,  226, 

348 
Jameson  raid,  69 
Jemchug,  case  of  the,  470 


Kaiserin  Maria  Thereiia,  ease  of  the, 

432 
Kamranh  Bay,  Russian  fleet  in,  451 
Keith,  Lord,  and  capitulation  of  El 

Arish,  318 
Kl^ber,  General,  and  capitulation  of 

El  Arish,  317 
Kleen,  on  carriage  of  contraband,  572 
Koningin  Emma,  case  of  the,  605 
Korea,  during  Russo-Japanese  War, 

94,  439 
theatre  of  war,  430 
Korietz,  case  of  the,  431,  471,  498 
Kriegs-manier,  85,  90 
Krcmprinz  Wilhelm,  case  of  the,  449 
Kniger,    President,    conveyance    to 

Europe,  488 


Lambermont,  Baron,  cited  on  private 
indiWduals  who  commit  hostile 
acts,  72 


INDEX 


657 


Land  warfare.  See  also  Enemy  terri- 
tory ;  Neutral  asylum  ;  PrisouerH 
of  war  ;  Private  enemy  property  ; 
Public  enemy  property 

aims  of,  160 

assault,  2 1(5-21 8 

bomhardiuent,  216-222 

contributions,  210-211,  238 

convention  respecting,  87 

convoys  of  evacuation,  183 

dead,  treatment  of  the,  184-185 

distinguished  from  sea  warfare,  167 

emblems  denoting  medical  estab- 
lishments and  personnel,  183, 
185,  229 

espionage,  222-226 

expanding  bullets,  80,  172 

explosive  bullets,  171 

flags  of  truce,  308 

Hague    regulations  concerning,  88 

killing  of  combatants,  169 

lawful  practices  in,  167,  170 

means  of,  166,  170 

medical  establishments,  units,  and 
material,  180,  221,  561 

medical  personnel,  181-182 

non-combatant  members  of  armed 
forces  in,  168,  173 

noxious  gases  used  in,  89,  172 

objects  of  means  of,  167 

prisoners,  who  may  be  made,  174, 
176,  191 

projectiles  dififusing  noxious  gases, 
89,  172 

quarter,  refusal  of,  169 

requisitions,  175,  204,  207-211, 
238 

ruses,  227-229 

sick,  treatment  of,  169,  176-185 

siege,  218-220 

stratagems,  227-229 

treason,  223,  226 

unlawful  practices  in,  167,  169, 
171,  217,  218 

violence  against  enemy  persons, 
168,  173-176 

voluntary  aid  societies,  181-182 

wounded,  treatment  of,  169,  177- 
185 

wounding  of  combatants,  169,  170 
Lap6rouse,  Count,  granted  safe-con- 
duct, 264 
Lausanne,  Peace  Treaty  of,  368 
Laws  of  war : 

binding  force  of,  90-92 

development  of,  86-90 

institute  of  International  Law  and, 
88 

origin  of,  84-85 

treaties  regarding,  86-90 


League  of  Nations.     See  also    Inter 
national  Court  of  Justice  : 
arbitration  and,  19,  20,  23,  25 
Assembly  of,  inquiry  by,  37 

report  of,  37 
boycott  to  be  emplojed  by,  61 
Council  of,  duties  in  settlement  of 
disputes,  36 
report  by,  36 
disputes  between  non-members  of, 

38 
duties  of,  35 
duties  of  members,  35 
intervention  in  violations  of  laws  of 

war,  335 
neutrality  and,  399 
settlement  of  international  disputes 
by,  6,  34-38 

compulsory  means  of,  39 
Legitimate  warfare,  means  of  secur- 
ing, 330-355 
Leiia,  case  of  the,  449 
Letters  of  marque,  47,  51,  109,  250, 

270,  387,  394,  444 
Levies : 

en  masse,  106,  174,  215,  346 
forcible,  170,  231 

on   neutral    territories    forbidden, 
443 
I  Licences : 

special,  of  ingress  and  egress  during 

blockade,  514 
to  trade,  305 
Lichtenstein,  war  with  Prussia,  357 
Lieber,  on  rules  of  war,  87 
Lien  on  war  material,  463 
Lippencott,  Captain,  case  of,  338 
Loans,  484-487 
Locksun,  case  of  the,  449 
London  :  Declaration  of.     See  Decla- 
ration of  London 
Treaty  of  (1814),  232 
Treaty  of  (1864),  96 
Long-distance    blockade,    615,    539- 

544 
Lord  Alverstone,  case  of  the,  474 
Louis  XIV.  :  Ordinance  of  1681,  con- 
cerning neutral  property,  249 
practice  of  embargo,  504 
Strasburg  seized  bj',  68 
Louis  Napoleon,  award  of,  in  the  case 

of  the  General  Armstrong,  498 
Louvain,  burning  of,  241 
Luding,  case  of  the,  275 
Lushington,   on  blockade,    524,  525, 

526 
Lusitania,    torpedoing   of,   149,   276, 

336 
Luxemburg,  neutrality  of,  437,  460 
Luxor,  case  of  the,  577,  633 


VOL.  II. 


2  T 


658 


INTERNATIONAL  LAW 


M 


Madison,  Mr.,  reprisal  by,  339 
Magellan,    Straits  of,   neutralisation 

of,  97 
Mail-bags  during  war,  268,  425 
Mail-boats  during  war,  267,  596,  601, 

606 
Malacca,  case  of  the.  111 
Manchuria,    during    Russo-Japanese 
War,  95,  439 
theatre  of  war,  430 
Manouha,  case  of  the,  600 
Marauding,  349 
Maria,  case  of  the,  624 
Maritime  belt,  extension  of,  93 

visitation  in,  606 
Maritime  Convention  of  St.    Peters- 
burg (1801),  392,  393,  607 
Maritime  Rights   Order,    1916,   398, 

513,  560,  566,  575,  578,  618 
Martens,  von,  19 

Mason,  Mr. ,  case  of  seizure  of,  590, 59!) 
Mecklenburg,  case  of  the,  491 
Medea,  case  of  the,  624 
Mediation,  11-16 
definition  of,  14 
duty  of  asking  for,  13 
duty  of  offering,  12,  13 
duty  of  receiving,  14 
good  offices  distinguished  from,  12 
Hague  Convention,  rules  regarding, 

13-15 
legal  value  of,  5 
occasions  for,  11,  333,  361 
particular  form  of,  15 
right  of  offering,  12,  14,  15 
value  of,  15 
Mediatorial  conference  possible,  11 
Medical    estalilishments,     etc.       See 

Land  warfare  ;  Sea  warfare 
Medtisa,  case  of  the,  478 
Menam,  blockade  of,  54 
Men-of-war.    See  also  Neutral  asylum 
belligerent,  abuse  of  neutral  asylum, 
469-471 

passage  through  neutral  mari- 
time belt,  437 
pilotage  of,  by  neutrals,  487 
repairs  to,  in  neutral  port,  449, 
469 
exterritoriality  of,  467 
internment  of,  468 
neutral,  as  an  asylum,  471 
right  of  visit  and  search  by,  605 
Menou,  General,  and  capitulation  of 

El  Arish,  319 
Merchantmen,       enemy.      See      also 
Enemy  vessels  ;  Prizes 


Merchantmen,  enemy  {continued) — 

appropriation  of,  248-255,  269-280 

attacking,  346 

attack  on,  113-114,  256,  257 

conversion  into   men-of-war,    109- 
113 
Hague  Convention  concerning, 
90,  165,  396 

conversion   into    men-of-war   after 
capture,  113,  262 

crews  of,  113,  262,  281 

destruction  of,  272-276 

false  flag  used  by,  291 

immunity  from  seizure  of,  162,  263- 
269,  316 

neutral  goods  on,  218-251,  263,  275, 
279,  395,  424 

ransom  of,  196,  277 

restoration  of,  280 

sale    of    goods    on,     in    transitu, 
134 

seizure  of,  160,  262-263 

ftatus  of,  at  outbreak  of  war,  160- 
165 

Hague  Convention  concerning, 
90,  161-165 

transfer  of,  130-133 

voyage  of,  at  outbreak  of  war, 
266 
Merchantmen,  neutral.  See  also  An- 
garj'  ;  Blockade  ;  Capture  ;  Con- 
traband of  war  ;  Trial  ;  Un- 
neutral service  ;  Visitation 

armed  guards  on,  475-476 

armistices  and,  320 

carriage  of  persons  for  belligerents, 
587-592 

crews  of,  281 

enemy  goods  on,  128,  160,  248-255, 
391,  425 

enemy  reservists  on,  602 

giving    transport   to    belligerents, 
488,  489,  595 

proceeding  to  enemy  port,  618 

rendering  unneutral   service,    404, 
425,  489,  587,  594 
capture  for,  596 

rescuing  wounded,  289,   471,  472, 
473 

salvage  by,  478-479 

under  convoy,  391,  595,  614 

under  enemy  flag,  124-128,  280 

wireless    telegraphy    installed   on, 
492 
Messina,  blockade  of,  54 
Metz,  battle  of,  437,  460 
Mexico,  blockade  of,  54 
Military  operations,  meaning  of,  239 

neutrals  affected  by,  428-442 
Militia,  104 


INDEX 


659 


Mines :  I 

convention  concerning  tlic    laying 

of,  90,  259,  390  i 

floating  mechanical,  259-261  ; 

submarine  contact,  259-2G1,  502       i 

Mitylenc,  seizure  of  the  island  of,  48 

Moclena,  subjugation  of,  300 

ModeMe,  case  of  the,  497 

Money  as  contraband,  554 

Montenegro,  war  with  Turkey,  100 

Moynier,  Gustave,  177 

Municipal  neutrality  laws,  403,  415 

Municipal    otticials,    deposition     by 
enemy,  242 


N 


Nancy  Court  of  Appeal,  case  of,  244 
Napoleon  I.  : 

act  of  reprisals  bj-,  147 
Berlin  decrees  of '(1806),  393,  515 
seizure  of  works  of  art  bj',  200 
troops  ordered  by,  to  march  through 
neutral  territory,  434 
Nassau,  subjugation  of,  360 
Nationality     of     owner     determines 

character  of  goods,  130 
Naval   Conference   of   London.      See 

London 
Naval  Prize  Act  (1864),  277,  278,  626 
Naval  Prize  Act  (1918),  279,  626 
Naval  warfare.     See  Sea  warfare 
Navarino,  battle  of,  53 
yehraskan,  case  of  the,  624 
Negotiation : 
conception  of,  6 
effect  of,  10 
importance  of,  10 
legal  value  of,  5 
peace,  361 
procedure  during,  6 
Negroes,     as     members     of     regular 

forces,  108 
Nelson,  defeat  of  Danish  fleet  by,  392 
Netherlands,  right  of  convoy  claimed 

by  the,  607 
Netherlands  Overseas  Trust,  543 
Neuillj'-sur-Seine,   Peace   Treaty   of, 

362 
Neumayr  de  Ramsla,  on  neutrality, 

385 
Neutral  asylum  : 
abuse  of,  469-471 
deserters,  460 
expenses  of,  461,  462,  473 
exterritoriality  of   men-of-war   in, 

467 
facilities    rendered   to   vessels    in, 

44S,  449,  451,  469,  470 
fugitive  soldiers  and,  458,  459-462 


Neutral  asylum  {cofUinurd) — 
in  general,  456 
land  and  naval  forces  distinguished 

as  regards,  464 
land  forces  and,  456-464 
naval  forces  and,  464-479 
neutral  men-of-war  as,  471-472 
non-combatants  of  belligerent  forces 

and,  462 
option  of  State  to  grant,  465 
prisoners  of  war  and,  457-459,  467, 

476-477 
vessels  in  distress  in,  466 
war  material  in,  462 

shipwrecked,  478-479 
Neutral    goods.      See    aim   Angary ; 
Merchantmen,      enemy  ;      Mer- 
chantmen, neutral 
Declaration  of  Paris  respecting,  86, 

425 
innocent    on     destroyed      neutral 

vessels,  623 
on  enemy  men-of-war,  263,  615 
on    such   enemy   merchantmen    as 
are  being  destroyed,  275 
Neutralisation,  exclusion  from  'region 
of  war'  bj',  96 
temporary,  98 
Neutralised  States  as  belligerents,  99, 

100,  429-431 
Neutrality.    See  aho  Blockade  ;  Con- 
traband  of   war ;     First   Armed 
Neiitrality  ;  Foreign  Enlistment 
Acts  ;    Merchantmen,     neutral  ; 
Second  Armed  Neutralitj' ;  Viola- 
tion 
angary,  right  of,  503-510 
armed,  definition  of,  409 
asylum,  to  land  forces,  456-464 
naval  forces,  464-479 
war  material,  462 
belligerents  to  recognise,  406-408 
benevolent,  410 
characteristics  of,  400-408 
civil  war  and,  405 
commencement  of,  413-416 
conception  of,  399,  4(K) 
conventional,  409 
declarations  of,  414 
definition  of,  400 
development    and     institution    of, 

383-399 
different  kinds  of,  408-413 
end  of,  417-418 

distinguished     from    \'iolation 
of,  494 
general,  409 
impartiality,     duty     of,     400-402, 

422-424 
instances  of,  386 


660 


INTERNATIONAL  LAW 


Neutrality  (continned) — 

intercourse  during,  no  cessation  of, 

404,  425 
knowledge  of  war  necessary  for,  413 
laws  prescribing  attitude  of,  414-416 
Middle  Ages,  384 
military  operations  and,  428-442 
military  preparations  and,  442-456 
oath  of,  238,  403 
partial,  409 
perfect,  410 
perpetual,  408 

qualified,  103,  410-412,  432,  435 
rights   and    duties    derived    from, 

402.  419-428 
rule  of  1756,  126,  389,  567 
'Three  Rules  of  Washington,'  19, 

453-456 
treaties   affecting,    384,    390,    392, 

412,  432 
voluntarj'^,  409 
Neutrals.       ^ee    also    Merchantmen, 
neutral ;    Neutral   asylum  ;    Un- 
neutral service 
belligerents  occupying  territory  of, 

438 
conduct    in    general     of,     401-402, 

419 
depots  and  factories  of  belligerents 

on  territory  of,  443 
'due  diligence,'  definition  of,  501 
fugitive  soldiers  in  custody  of,  458, 

459-462 
hostilities  by  and  against,  429-431 
impartiality  of,  401,  422-424 
intercourse    between    enemy    and, 

404,  424,  427,  497 
intervention  of,  334 
loans  by,  to  belligerents,  484 

on  the  part  of  subjects  of,  485- 
487 
men-of-war,  built  and  fitted  out  by, 
451-456 

passage  of,  through  waters  of, 

437 
rescuing  wounded,  etc.  ,289, 471 
supplied  by,  432,  452 
military  operations  and,  428-442 

information  regarding,  489-493 
military  preparations  and,  442-456 
mines,  laying  of,  by,  502 
naval  operations  and,  446-451 

information  regarding,  489-493 
notification  of,  of  outbreak  of  war, 

140 
organisation  of  hostile  expeditions 

by,  445 
pilotage  by,  487 

Prize  Courts  on  territory  of,  439 
prizes  of  belligerents  and,  440 


Neutrals  (continued) — 

relations  of,  with  belligerents,  333, 

419 
rights  and  duties  of,  402,  419-428 
Hague  Convention  concerning, 
90 
services   b}^    to   belligerents,    432, 

487-493 
subjects  of,  fighting  for  belligerents, 
433 

position  of,  during  neutrality, 
403 
supplies   by,    to   belligerents,  415, 
447,  451-456,  480-487 

on   part   of    subjects   of,    481- 
487 
transfer  of  enemy  vessels  to,  130- 

133 
transport  by,  471,  488-489 
troops,  levy  of,  by,  443 

supplied  by,  432,  443 
vessels  of,  rescuing  wounded,  289, 

471,  472 
warships   supplied    to    belligerents 

by,  452,  453 
wireless  telegraphy  and,  490-493 
Neutral  territory.     See  also  Neutral 
asylum  ;  Violation 
aircraft  on,  463-464 
asylum  in,  456-464,  473 
base  of  naval  operations  forbidden 

in,  446-451,  452 
depots  and  factories  on,  443 
despatches  carried  over,  490 
hostile  expeditions  from,  445 
levy  of  troops  in,  443 
occupation  of,  bj^  belligerents,  438 
passage    through,    411,    422,   434- 

437,  444 
Prize  Courts  on,  439 
'  region  of  war,'  95 
shipwrecked,  the,  on,  473 
war  materials  and  supplies,  435-436, 
462 

shipwrecked,  478-479 
Neio  Amsterdam,  case  of  the,  602 
Newspaper  correspondents   in   naval 

warfare,  493 
Niagara,  case  of  the,  527 
Nicaragua,  reprisals  against,  by  Great 

Britain,  48 
Nickolsburg,  Preliminaries  of,  363 
Niger  river,  neutralisation  of,  96 
Nimeguen,  Peace  of  (1678),  68 
Non-combatants : 

attached  to  armies,  104,   173,  180- 

183,  191,  462 
attached  to  naval  forces,  282,  285- 
289,  467 
Non-hostile  relations,  303-329 


INDEX 


661 


North-Eastern  Boundary  Dispviti"  be- 
tween U.S.A.  and  Great  Britain, 
20 
North-Ciorman  Confederation,  110 
North  Sea  outrage.    See  Dogger  Bnid< 
Northern  War,  selling  of  territories 

during,  231 
Norway,  frontier  with  Sweden  neut- 
ralised, 97 
Notification  : 

blockade,  519-521 
bombardment,  220 
contraband,  551,  550 
outbreak  of  war,  139,  4 IS 
^Vorara,  case  of  the,  2*»4 
^^uvik,  case  of  the,  470 


O 


Occupation.     Sec    Enemy    territory ; 

Neutral  territory 
Oki,  Captain  Teisuki,  226,  348 
Oleg,  case  of  tlie,  470 
Open  sea  : 

angarj',  right  of,  on,  506 
belligerents  in  neutral  ports  leav- 
ing for,  447,  448,  469 
capture  on  the,  596 
contraband  on,  563 
despatch  carriers  on,  597,  599,  601 
enemy  property  found  on,  by  bel- 
ligerents, 619 
goods  on  neutral  vessels  on,  563-584 
jurisdiction  over    foreign   subjects 

on,  403 
mines  in,  259-261 
neutral  merchantmen  on,  143 
neutralisation  of  parts  of,  98-99 
order   on   the,    in   thirteenth   cen- 
tury, 270 
region  of  war,  92-99 
telegraph  cables  in,  297-298 
visitation  on,  606 
Orange   Free   State,    annexation   of, 
360 
effective  occupation  of,  235 
Ordinances  by  France  on  neutral  ships 

and  goods,  249 
Orinoco  Steamship  Company,  case  of, 

21 
Om,  case  of  the,  478 
Outbreak  of  war  :   136-142.     See  also 
Efifects  of  outbreak  of  war 
after  declaration,  138 
after  initiative  hostile  acts,  141 
after  ultimatum,  140 
immunity  of  merchantmen  at,  266 
in  general,  136 
notification  of,  139,  413  I 


Pacific  blockade  : 

admissibility  of,  55,  57 

development  of,  53 

disposal  of   vessels  seized  during, 
56,  57 

instances  of,  53,  54,  55,  56 
mode  of,  57 

tliird  States  and,  56 

seizure  of  vessels  of,  56 

value  of,  58 

variations  of  practice  in,  56 

war  not  necessarilv  caused  by,  58 
Pacifico,  Don,  case  of,  46,  54 
Palais  de  Venice,  confiscation  of,  336 
Palme,  case  of  the,  264 
Panama  Canal,  neutralisation  of  the, 

96 
Papal  States,  subjugation  of,  360 
Papcn,  Captain  von,  case  of,  306 
Paris : 

Act  of  November  (1815),  435 

Declaration  of  (1856).     See  Declar- 
ation of  Paris 

Peace  Treaty  of.     See  Peace  Treaty 
Parma,  subjugation  of,  360 
Parole,  release  on,  192,  304,  468 
Pascal,  case  of  the,  471 
Passage  through  neutral  territory  : 

individuals  intending  to  enlist,  444 

prisoners  of  war,  459 

troops,  412,  422,  4.34-435 

war  material  and  supplies,  435-436 

wounded,  436-437 
Passports,  306 

Paul,  Emperor,  armed  neutrality  in 
reign  of,  391 

assassination  of,  392 
Paio,  neutralisation  of,  96,  409 
Peace.     See  also  Treaty  of  peace 

negotiations  for,  361 

preliminaries  of,  363 

restoration  of  condition  of,  365 
Peace  Conferences.     See  Hague  Peace 

Conferences 
Peace  Societies,  so-called,  25 
Peace  Treaty  of : 

Amiens  (1802),  366 

Berlin  (1878),  364 

Bucharest  (1886),  100 

Frankfort  (1871),  363,  372,  377 

Frederiksharam  (1809),  231 

Lausanne  (1912),  368 

London  (1864),  96 

Neuilly-sur-Seine  (1919),  362 

Nimeguen  (1678),  68 

Paris  (1856),  12 

Portsmouth  (1905),   16,   363,    366, 
631 


662 


INTERNATIONAL   LAW 


Peace  Treaty  of  (continued) — 
Prague  (1866),  363 
Pyrenees  (1659),  609 
St.  Germain-en-Laye  (1919),  362 
San  Stefano  (1878),  304,  370 
Sevres  (1920),  362 
Trianon  (1920),  362 
Versailles  (1919),  362 
Westminster  (1654),  607 
Zurich  (1859),  363 
Perfidy,  instances  of,  229,  292,  311, 

315 
Permanent  Court  of  Arbitration,  14, 
25,  29,  179,  630 
decisions  of,  20 
International  Bureau  of  the,  8,  14, 

29  1 

procedure  of  the,  29-34  ; 

Persia,    eralilem  of   medical   service,  I 

183 
Persona  standi    in  judicio   of    alien 

enemies,  150-152 
Peterburg,  case  of  the.  111 
Petrolite,  case  of  the,  133 
'  Philanthropic  mission,'  immunitj'of 

vessels  engaged  in,  264 
Phillimore  on : 
blockade,  524 
capitulations,  315 
continuous  voyage,  568 
loans,  485 
reprisals,  48 
imneutral  service,  593 
violations  of  neutrality,  411 
Piepenbrink,    August,    the    case    of, 

602 
Pillage,  204,  296 
Pilotage  by  neutrals,  487 
Platuria,  case  of  the,  133 
Poison  gas,  declaration  concerning, 

89,281 
Poison   in    warfare,   91,     171,    219, 

281 
Portalis,  declaration  bj',  70 
Port  Artliur,  battle  of,  470 
blockade  of,  259,  492 
surrender  of,  315 
Portsmouth,  Peace  Treaty  of  (1905), 

16,  363,  366,  631 
Portugal : 

commercial   treaty  with   Holland, 

18 
treaty  affecting  neutrality  of,  412 
Postal  Convention : 

between  Great  Britain  and  France 

(1860),  268 
betw  een  Great  Britain  and  Holland 
(1843),  268 
Postal   correspondence    during    war, 
268,  425,  592,  596 


Postliminium  : 
conception  of,  374 
effects  of,  374-375 
illegitimate  acts  and,  377 
interregnum  debars,  378-379 
legitimate  acts  unaffected  by,  376 
revival  of  former  state  of  things, 
375 
Prague,  Treaty  of  (1866),  363 
Preliminaries  of  peace,  363 
Presidente  Mitre,  case  of  the,  128 
Provost,  General,  reprisal  by,  338 
Primula,  case  of  the,  256 
Prinz  Eitel   Friodrich,   case   of   the, 

441,  449 
Prisoners  of  war : 

civilians  as,  174-175,  191 
correspondence  of,  190 
development  of  international  law 

concerning,  186-188 
discipline,  191 
end  of  captivity,  195-196 
escaped,  192 
heads  of  states  and  officials,   176, 

365 
information  bureau,  193,  304 
neutral   asylum   to,    457-459,   467, 

476-477 
parole,  release  on,  192,  304 
passage  through  neutral  territory, 

459 
payment  of,  189,  190 
personal  belongings  of,  188-189 
ransom  of,  187,  195,  196 
release  of,  on  conclusion  of  peace, 

370-371 
relief  societies  and,  193-194 
religious  observances  of,  190 
reprisals  and,  337-340 
reservists  as,  601-603 
sea  warfare  and,  281,  467,  597 
treatment  of,  188-190,  194-195,  337 
trial  of,  for  crimes  committed,  369 
wills  of,  190 
work  of,  189 

World  War  and,  188-190,  194-195, 
601-603 
Private    enemy   property.     iSee   alto 
Requisitions 
appropriation  of,  197,  202-206,  210 
at  sea,  248,  251-254 
booty  on  battlefield,  185,  201,  205 
confiscation  of,  157,  158 
conveyed    into  Vjelligerents'    terri- 
tory, 206 
destruction  of,  212-216 
during  bombardment,  221,  222 
immoveaVjle,  202-203 
on  enemy  territory,  157-160 
personal,  204,  284 


I 


INDEX 


663 


Private  enemy  property  {continued) — 
transport,  uionna  of,  203 
utilisation  of,  202 
war  material,  203 
works   of    art   and    science,    203, 

220 
World  War  and,  122,  204 -20r) 
Private  individuals.    See  also  Trading 

with  the  enemy 
during  siegeand  bombardment,  219, 

220 
espionage  by,  225 
hostility  in  arms  of,  174,  345 
of    neutral    States,    treatment   of, 

403-405 
persona  standi  in  judicio,  150-152 
position  at  outbreak  of  war,  147 
position  in  general  as  regards  war, 

69-74,  173-175 
property  of,   on  enemy  territorj', 

157 
requisitions    in   kind    and    service 

from,  175,  207-211,  238-242 
violence  against,  173-175,  282 
Privateering,  109,  249,  389 

abolished  by  Declaration  of  Paris, 

86,  109,  257 
Privateers,  109,  394,  412,  469,  605 
Prize  Courts.     See  also  International 

Prize  Court 
adjudication  by,  262,  271-272 
appeal  against  judgment  of,   599, 

632,  639 
blockade  runners,  adjudication  of, 

537 
British  practice,  271,  389,  626 
captured  neutral  vessel  to  be  tried 

by,  580-584,  599,  616,  621-625 
claims  after  judgment  of,  632 
conduct  of  neutral  vessels  to,  620 
continuous  voyage  and,  567 
discretion    of,   as    to   confiscation, 

616 
during  World  War,  576 
French  Prize  Court,  70,  394,  440 
origin  of,  270 
practice  of,  627-628 
procedure  in,  629 
purpose  of,  271 
reform  projects  for,  634 
territory  on  which  instituted,  272, 

439 
Prize  Courts  Acts,  1894-1915,  626 
Prizes.     See  also  Naval  Prize  Act 
abandonment  of,  278 
British  prize  law  and  right  of  an- 
gary, 509 
cargo  of,  273 
conduct  of,   to  Prize   Court,    272, 

620 


Prizes  {continued) — 

confiscation  of,  after  conclusion  of 

peace,  631 
crew  of,   115,  262,  272,   273,   275, 

496,  538,  620 
destruction  of,  273-276,  020-624 
fate  of,  262,  279 
hostage  for  ransom,  277 
loss  of,  278 
neutral    goods  on,   273,  275,   279, 

599 
Prussian     regulations     regarding, 

573 
ransom  of,  277,  624 
recapture  of,  278,  624 
safe-keeping  on  neutral  territory, 

440-441 
sale  of,  440 

effect  of,  279 
Projectiles.     See  also  Arras  and  am- 
miuiition 
asphyxiating  gases  in,  89,  172,  281 
from  balloons,  89,  281 
liquid  fire,  171 

St.  Petersburg  Declaration  affect- 
ing, 87,  171 
Property.     See   Private   enemy  pro- 
perty ;  Public  enemy  property 
Prussian  Regulations  regarding  Naval 

Prizes,  573 
Public  debts,  reprisals  against,  49 
Public  enemy  property.    See  also  De- 
struction of  enemy  property 
appropriation  of,  197-201,  207 
at  sea,  248 

booty  on  battlefield,  185,  201 
during  bombardment,  222 
during  World  War,  200 
immoveable,  198-199 
moveable,  199-200 
on  enemy  territory,  158 
utilisation  of,  198-199 
Pufendorf,  cited  on  armistices,  326 
Pursuit,  right  of.   See  Right  of  pursuit 
Pyrenees,  Peace  Treaty  of  (1659),  609 


Q 


Qualified  neutrality.     See  Neutrality 
Quarter : 

duty  of  giving,  169,  261,  281 

refusal  of,  169 
Quartering  of  soldiers,  204,  209 


R 


Railways,  use  of,  in  war,   158,    199, 
203 
neutral  rolling  stock  on,  488-489 
right  of  angary  and,  509 


664 


INTERNATIONAL  LAW 


Ramazan,  case  of  the,  474 

Bamillies,  case  of  the,  292 

Ransom  of  prize,  277,  624 

Ras-el-Tin  fort,  case  of,  312 

Rebellion  contrasted  ^\ith  war,  69 

Rebels,  76 

Recapture  of  prizes,  278,  624 

Beceptum  arhitri,  18 

Recognition  as  a  belligerent  Power, 

76 
Red  Cross,  183,  185,  229,  289 
Red  Sea,  proposed  neutralisation  of, 

98 
Region  of  war,  92-99 

exclusion  from,  through  neutralisa- 
tion, 96 
Russo-Japanese  War  and,  95,  430, 

439 
South  African  War  and,  93 
Turco-Italian  War  and,  94 
World  War  and,  93-95 
Relief  Societies,  193-194 
Reparation  for : 

exercise   of  right  of   angary,    424, 

507,  508 
violation   of  neutrality,    388,   421, 

497,  499 
violation  of  the  laws  of  war,   353- 
355 
Reprisals.     See  aUo  Embargo 

admissibility  of,  45,  46,  312,  337, 

352,  426 
antiquity  of,  47 
arbitrariness  in,  danger  of,  337 
by  whom  performed,  47 
cessation  of,  51 
conception  of,  44 
embaigo,  45,  50-51 
inception  of,  51 
instances  of,  147,  169,  336-341 
kinds  of,  48,  49 
laws  of  war  not  binding  in  case  of, 

90 
objects  of,  48-49 
peace,  distinguished  from  war,  52, 

335 
proportionate  to  wrong  done,  49 
reservists,  seizure  of,  601-603 
restriction  of,  proposed,  340 
retorsion  contrasted  with,  44,  335 
settlement  of  State  differences  by,  5 
value  of,  52,  336 

World   War  and,    336,    337,    339, 
340,  426-428 
Requisitions,  175,  204,  207-211,  238, 

293,  296,  507,  508 
Reservists,  seizure  of,  601-603 
Renhitelni,  case  of  the,  431,  498 
Resistance    to     visitation,    forcible, 
612-616 


Resolution,  case  of  the,  263 
Retorsion  : 

conception  and  characteristics  of, 
42 

exercise  of,  43 

importance  of,  42 

justification  for,  43 

reprisals  contrasted  with,  44,  335 

settlement  of  State  differences  by,  5 

value  of,  43 
Reuss,  M.  de,  46 
Riga,  blockade  of,  525 

Russian   vessels   permitted    egress 
during,  527 
Right  of : 

angary,  503-510,  581 

convoy,  607 

pursiut    of   a   defeated    fleet    into 
neutral  waters,  388,  429,  470 

pui'suit  of  a  vanquished  ai'my  into 
neutral  territory,  388,  429 

stoppage  in  traiuitu,  134 

visit  and  search,  320,  604-618 
Rio  de  Janeiro,  blockade  of,  54 
Rio  Grande,  blockade  of  the,  516 
Rivers.     See  International  rivers 
Riza   Bey,    Colonel,    made    prisoner, 

600 
Rohe  iVennemy  conjiaque  celle  d'amy, 

249 
Roberts,  Lord  : 

action  concerning  train  MTecking, 
351 

proclamations  during  South  African 
War,  351 

reprisal  by,  337 
Roche,  Hon.  J.  B.,  case  of,  416 
Rojdestvensky,  Admiral,  in  territorial 
waters,  451 

North  Sea  outrage  and,  8 
Rouen,  blockade  of,  515 
Rouraania  : 

position  of,  in  Russo-Turkish  War, 
100 
Rule  of  1756,  126,  389,  567 
Runhild,  case  of  the,  472 
Ruses : 

characteristics  of,  227 

distinguished  from  perfidy,  229 

kinds  of,  227-228,  291 
Russo-Japanese  War  referred  to  on  : 

armistice,  366 

asylum  to  men-of-war,  470,  471 

booty  on  battlefield,  206 

capitulation,  315 

contraband,  553,  554,  555 

declaration  of  war,  138 

destruction    of    enemy    merchant- 
men, 274 

destruction  of  neutral  prizes,  621 


INDEX 


665 


Russo-.Tapftnese   War  referred  to  on 
{rontiinnd) — 

disj{iiise(l  soldiery,  229,  3.'13 

Dogger  Bank  case,  7,  15 

enemy  subjects  on  belligerent's  ter- 
ritory, 148,  149 

good  otfices,  15 

hospital  ships,  287 

intervention,  430 

irregular  forces,  106 

loans,  floatation  of,  485,  48G 

meciianical  mines,  259 

merchantmen  at  outbreak  of  war, 
158,  260 

neutrality,  95,  395,  415,  416,  430, 
432,  470 

newspaper  correspondents,  493 

peace  negotiations,  363-366 

prisoners  of  war,  371,  471 

prizes,  condemnation  of,  after  con- 
clusion of  peace,  631 
destruction  of,  274 

region  of  war,  95,  430,  439 

release  of  neutral  prizes,  631 

telegraphic  facilities,  492 

unneutral  service,  589,  595 

volunteer  fleets.  111 

warships  in  neutral  waters,  449,  451 

war  treason,  348 
Russo-Swedish  War  (1788),  neutrality 

during,  412,  432 
Russo-Turkish  War  (1877) : 

amnesty,  370 

Bag,  use  of  false,  291 

loans,  485 

merchantmen  at  outbreak  of  war, 
266 

peace  negotiations,  364 

Roumania,  position  of,  in,  100 


Sacramento,  case  of  the,  441 

Safe-conducts,  granting  of,  263,  306 

Safeguards,  307-308 

Saga,  case  of  the,  624 

St.  Germain-en-Laye,  Peace   Treaty 

of,  362 
St.  Petersburg.     See  also  Declaration 

of  St.  Petersburg 
Maritime    Convention    of    (1801), 

392,  393,  607 
Sale  of  vessels  in  time  of  war,   130- 

133,  280,  432,  480 
Salonika,  occupation  of,  during  World 

War,  431 
Salvage    by    neutral    merchantmen, 

478-479 
San  Stefano,  Peace  Treaty  of,  364, 

370 


Sanlinia,   subjugation   of   States  by, 

360 
Scott,    Sir    William.      -S'ee    Stowell, 

Lord 
Scouting,  223 

Search.     See  alio  Visitation 
procedure,  611,  612 
resistance  to,  612-616 
right  of,  over  merchantmen,  603- 

618 

during  armistice,  320 
Sea    warfare.      See    al/>o    Blockade; 

Enemy    vessels  ;    Merchantmen  ; 

Neutral  asylum ;    Prizes  ;    Prize 

Courts 
aims  of,  246 
bombardment  of  enemy  coast,  294- 

297 

Hague  Convention  concerning, 
90 
cables,  interference  with  submarine, 

297-298 
codification  of  law  of,  255 
contributions  in,  293 
dead,  treatment  of,  285 
Declaration  of  Paris  respecting,  86 
distinguished   from    land    warfare, 

167 
espionage,  291 

fishing  boats,  immunity  of,  265 
flags  of  truce,  308 
French     ordinances     relating     to, 

249 
Geneva  Convention  adapted  to,  89 
hospital  ships,  267,  285-288 
hospital  staff  on  ships,  290 
lawful  practices,  247 
means  of,  246,  256 
medical  staff  on  ship,  290 
mines,  submarine,  259 
neutral  territory  as  naval  base  for- 
bidden, 446-451 
newspaper  correspondents  in,  493 
objects  of,  248 

prisoners,  who  may  be  made,  281 
private    property    at    sea   during, 

248-254 
religious  staff  on  ship,  290 
requisitions,  293 
restrictions  on  the  right  of  capture, 

263-269 
ruses,  291 

shipwrecked,  treatment  of,  284 
sick-bays,  288 
sick,  treatment  of,  284 
torpedoes  in,  258 
treason,  291 
unlawful  practices,  247 
violence  :  against  combatants,  280- 
282 


666 


INTERNATIONAL   LAW 


Sea  warfare  :  violence  (continued) — 
against  non-combatants,  282 
against  enemy  civilians,  282 
volunteer  fleets,  109-113 
wounded : 

articles  destined  for  the,  561 
treatment  of,  283-290 
neutral  ships  assisting,  289,  471- 
473 
Second  Armed    Neutrality,   391-393, 

410,  523,  530,  547,  607 
Sedan,  battle  of,  437 
Seizure.       See  also  Angary  ;    Enemy 
vessels 
immunity  of  vessels  from,  263-269 
Serbia,  war  with  Bulgaria,  69 

war  with  Turkey,  100 
Seven  Years'  War,  forcible  levies  in, 

231 
Sevres,  Peace  Treaty  of,  362 
Ship.     See  Contraband  vessels  ;  En- 
emy vessels  ;  Fishing  boats  ;  Men- 
of-war  ;  Merchantmen 
Ship  papers,  566,  575 
deficiency  of,  616 

destruction  or  concealment  of,  617 
double  and  false,  577,  580,  617 
inspection  of,  by  visiting  man-of- 
war,  610 
ShipwTecked,  treatment  of  the,  283- 

290,  473 
Sicilian  sulphur  monopoly,  45 
Sicilies,   reprisals  against,   by  Great 
Britain,  45 
subjugation  of  the  Two,  360 
Sick-bays,  288 
Siege,  218-220 

blockade  distinguished  from,  512 
Silesia,  passage  of  troops  through,  434 
Silesian  loan,  case  of  the,  49,  632 
Sinnet,  Mr.,  case  of,  416 
Slidell,  Mr.,  case  of  seizure  of,  590, 

599 
Smith,  Sir  Sidney,  and  capitulation 

of  El  Arish,  317 
Smolentk,  case  of  the,  111 
Solferino,  battle  of,  177 
Soudan,  position  of,  in  World  War, 

94 
South  African  Republic : 
annexation  of,  359,  360 
effective  occupation  of,  235 
Jameson  raid,  69 
South  African  War  : 
amnesty,  369 
concentration  camps,  216 
continuous  transports,  568,  570 
devastation,  216 

enemy    subjects     on    belligerent's 
territory,  148 


South  African  War  (contmued) — 
hostages,  351 
natives  as  scouts,  108 
need    of    an    International    Prize 

Court,  636 
neutrality,  395,  412 
occupation  of  enemy  territory,  235 
passage  of  troops,  412 
prisoners,  170 
region  of  war  in,  93 
repatriation,  196 
reprisals  during,  337 
subjugation,  360 
transport,  488 
vessel,  release  of,  625 
Spanish-American  War : 
blockade,  523 
cable  laying,  492 
cancellation  of  treaties,  145 
coloured  ti'oops,  108 
flag,  use  of  false,  291 
merchantmen  at  outbreak  of  war, 

266 
Spanish  Armada,  prisoners  from,  on 

neutral  territory,  458 
Spanish  Colonies'  War  of  Independ- 
ence, sale  of  vessels  in  (1825),  480 
Spartel,  Cape,  neutralitj'  of,  98 
Spies.     See  Espionage 
Stackelberg,  Baron  de,  case  of,  48 
State    differences.     See    also   Hague 

Conventions ;    International  ar- 
bitration ;  Intervention ;  League 

of    Nations ;    Pacific    blockade ; 

Reprisals;  Retorsion 
amicable  settlement  of,  3-38 

four  ways,  5 
compulsive  settlement  of ,  39-61 

conception,  39 

four  ways,  5,  40 

ultimatums  and  demonstrations, 
41 

war  distinguished  from,  40 
Law  of  Nations  and,  4 
League  of  Nations  as  a  factor  in,  6, 

34-38 

representation  of  parties,  36 
legal,  3-5 

causes  of,  3 

settlement  of,  4 
participation  of  third  party  in,  58- 

59 
political,  3-5 

causes  of,  3 

settlement  of,  4 
States : 
duty  of,  in  neutrality,  403 
qualification  to  make  war,  99-101 
vicarious  responsibility  for  injurious 

acts  of  naval  forces,  630 


INDEX 


667 


Statute  of  Limitations,  World  War 

and. 152 
Stockholm,  Convention  of  (1905),  97 

Treaty  of  (181.S),  232 
Stoessel,  General,  accused  of  perfidy, 

315 
Stone  blockade,  611,  526 
Stoppage  in  transitu,  right  of,  134 
Story,  Mr.  Justice,  569,  015 
Stowell,  Lord  : 

neutral  property  on  armed  enemy 

vessels  condemned  bj-,  615 
on    capture    of    enemy    vessels   in 

neutral  waters,  499 
on  contraband.  571 
on  immunity  of  fishing  boats,  265 
on  occupation  of  enemy  territory, 

232 
on  Prize  Courts,  C28 
on  unneutral  service,  589 
on  vessels  under  neutral  convoy,  615 
Straits,  blockade  of,  516 
Strasburg,  68,  221 
Stratagems.     See  Ruses 
Sti-ategic  blockade,  513 
Subjugation  : 

definition  of,  359 
formal  end  of  war,  357,  300 
instances  of,  357.  360 
Submarine  cables,  297-298,  391 
Submarine  mines.     See  Mines 
Submarines,  destruction  of  prizes  by, 
276 
neutral  asylum  and,  466-467 
Subsidies,  484-487 

Suez  Canal,  neutralisation  of,  96,  111 
Surrender.     See  Capitulations 
Suspension  of  arms,  320 
Sweden,  frontier  with  Norway  neut- 
ralised, 97 
Swineherd,  case  of  the,  366 
Swiss   Bundesrath,   on   treatment   of 

wounded,  177-178 
Switzerland,    neutralisation    of,    99, 
384,  394,  402,  408,  409,  435,  460, 
462,  482 
troops  marched  through,  434 
Sybille,  case  of  the,  291 


Tagus,  blockade  of  the,  54 

Talbot,  case  of  the,  471 

Tangier,  Treaty  of,  98 

Tarnowski,      Count,       .safe  -  conduct 

granted  to,  590 
Telegraph  cables,    interference   with 

submarine,  297-298 
use  of,  by  belligerents,  490-492 


Telegraphy,  wireless,  490-493 

Temrrairc,  case  of  the,  311 

Teteiis,     proposal     reganling     Prize 

Courts,  635 
Theatre  of  war,  92-93 
Thyra,  case  of  the,  474 
Torpedoes,  258 

Trading  with  the  enemy,  153-157,  428 
French  legislation,  153,  155 
German  legislation,  155 
licences  to  trade,  305 
neutrals  and,  155 
United   Kingdom    legislation,   122, 

155,  157,  158 
United  States  legislation,  156 
Train-wrecking,  351 
Traitors,  223 
Transfer  :  of  enemy  goods,  133-135 

of  enemy  vessels,  130-133 
Transmission  of   intelligence  for  the 

enemy,  592-594 
Transport   on   the   part   of    neutrals, 

471,  488,  489 
Transvaal.      See  South   African   Re- 
public 
Treason,  223,  226,  291,  346-349 
Jakoga,  Major,  case  of,  226 
Oki,  Captain,  case  of,  226 
war    treason     distinguished     from 
real  treason,  226 
Treaties  : 

arbitration,  9,  17,  19,  21,  22,  23 
Bryan  arbitration  treaties,  9 
cancellation  of,  at  outbreak  of  war, 

145-147 
cancellation   through  violation   by 

one  party,  372 
commercial  (1871),  251,  579 

(1894),  18 
compromise  clause  in,  5,  17 
friendship    and    commerce    (1785), 
188,  251,  579 
(1778),  412 
interpretation  of,  21,  26 
law  making,  146 

revival  of.  after  World  War,  146- 
147 
Treaty  of  : 

Berlin  (1878),  96 
Buenos  A vre3(  1881),  97 
Copenhagen  (1830),  614 
London  (1814),  232 
London  (1804),  96 
Stockholm  (1813),  232 
Washington  (1871).  454.  633 
Westminster  (1654),  607 
Treaty  of  peace.     See  also  Austrian 
Peace  Treaty  ;    Bulgarian  Peace 
Treaty  ;  German  Peace  Treaty  ; 
Turkey 


668 


INTERNATIONAL   LAW 


Treaty  of  peace  {contimied) — 
amnesty  under,  368-370 
breach  of,  372-373 
cancellation  of,  373 
competence  to  conclude,  364 
date  of,  365 
eflFects  of,  366-371 

forces  in  distant  parts,  eifect  on,  366 
form  of,  364 

interpretation  of  stipulations  of,  372 
negotiations  for,  361 
normal  end  of  ^var,  357,  361 
parts  of,  364 
performance  of,  371-372 
preliminaries  of,  363 
principle  of  uti  possidetis,  358,  368 
prisoners  of  war,  release  of,  370 
revival  of  treaties,  371 
violation  of,  372 
Trent,  case  of  the,  590,  600 
Trial    of    captured    neutral    vessels, 

626-633 
Trianon,  Peace  Treaty  of,  362 
Tripoli,  annexation  of,  236,  368 
ultimatum  threatening   occupation 
of,  141 
Truce.      See    Armistices  ;    Flags    of 

truce 
Tsu  Shima,  battle  of,  470 
Turco -Italian  War  (1911) : 

annexation  of    Tripoli  and  Cyren- 

aica,  368 
blockade,  516,  535 
bomViardment  by  naval  forces,  296, 

333 
carriage  of  contraband,  574 
complaints  to  neutral  Powers  dur- 
ing, 333 
enemy  goods,  130 
mediation,  12 

occupation  of  enemy  territory,  236 
Red    Sea,    proposed   neutralisation 

of,  98 
region  of  war,  94 
rules  of  the  Declaration  of  London, 

396 
subjects     of     belligerent    expelled 

from  enemy  territory,  149 
subjects   of   belligerent   on   enemy 

territory,  148 
transfer  of  enemy  vessels,  132 
unneutral  service,  600 
Turco-Serbian  War  (1877),  violation 

of  neutrality  during,  433 
Turkey,  emblem  of  medical  service  of, 
183 
Peace  Treaty  with,  97,  362 

pre-war  contracts  under,  157 
reprisals  against,  by  France,  48 
Tuscany,  subjugation  of,  360 


U 


Ukase  of  1809,  393 
Ultimatum,  41,  140-141 
Umpire  in  arbitration,  17,  33 
United  States  of  North  America  : 
Foreign  Enlistment  Act  of,  394,  415 
Instructions  for  the  Government  of 
Armies  of  the,  in  the  Field  (1863), 
87 
International  Prize  Court  and  the, 

642 
neutrality  of,  412,  443,  445 
war  code  :  land,  87 

naval,   247,   255,   265,   274,   291, 
315,  507,  522,  528,  554 
War  of  Secession,  69 
Unneutral  service,  425,  489 
analogous  of  contraband,  586 
capture  for,  596 
carriage   of   despatches,    585,   592- 

594,  598-601 
consequences  of,  596-603 
diplomatic  personages,  carriage  of, 

for  enemy,  589-590,  601 
enemy  character  created   by,  593- 

596 
enemy   persons,    carriage   of,    585, 

587-592 
kinds  of,  585-596 
mail-boats  carrying  despatches,  596, 

601 
penalty  for,  597 
seizure  of  despatches,  599-601 
seizure  of  enemy  persons,  599-603 
transmission   of   intelligence,    592- 
594 
Uriu,    Admiral,   in    Korean    neutral 

waters,  431 
Usus  in  hello,  85 
Uti  possidetis,  principle  of,  358,  368 


V 


Valentine,  case  of  the,  441 
Variag,  case  of  the,  431,  471,  498 
Vassal  States,  wars  b}',  69,  75,   100, 

101 
Vattel  on : 

armistices,  325 

loans  to  belligerents,  484 

neutrality,  386 

occupation  of  territory,  231 

perfidy,  292 

reprisals,  49 
Vega,  case  of  the,  264 
Venezuela  : 

blockade  of,  55,  57 

boundary  dispute  (1900),  18 

reprisals  against,  by  Holland,  46 


INDEX 


669 


Veraailica,  Peace  Treaty  of  (1919),  362 

Prcliminariosof  Peace  of  (1871),  'H>li 

Vessels.      iSee     Contraband     vessels  ; 

Enemy  character ;  Enemy  vessels ; 

Fishing      boats  ;      Men-of-war ; 

Merchantmen  ;    Pacitio  blockade 

Victor,  case  of  the,  481 

VigilnntViiu>  jura  suiit  script  a,  326 

Villafranca,    Preliminaries    of    Peace 

Treaty  of,  363 
Violation  of : 

armistices,  328-329 
capitulations,  319 
neutral  territorj-,  424,  430 
neutrality,  103.  407,  411,  421,  493- 
603 
conception  of,  493 
consequences  of,  495 
distinguished  from  end  of,  494 
mines  laid  to  prevent,  502-503 
negligence  by  neutrals  conducive 

to,  501 
neutrals  and,  408,  496 
reparation  from  belligerents  for, 

388,  421,  430,  497,  499 
what  constitutes,  417,  421,  424, 
431-456,    459,    470,   480,    484, 
488,  489-493,  577 
peace  treaties,  372 
I'ules  of  war,  342-344 

compensation  for,  330,  353-355, 
494 
treaties,       cancellation      through, 
372 
Violence  :  in  land  M'arfare,  168-176 

in  naval  warfare,  280-283 
Visitation  of  neutral  vessels  : 
armistice  and,  605 
conception  of  right  of,  604 
convoyed  vessels,  391,  606-609,  614 
exercise  of,  605 
mail-boats,  606 
men-of-war,  605 
papers  and,  616-618 
private  vessels,  606 
procedure,  610 
purpose  of,  616 
resistance  to,  612-616 
by  neutral  convoj',  615 
consequences  of,  612 
rules  regarding,  no  universal,  609 
search,  611 
stopping   vessels    for   purpose    of, 

609 
what  constitutes,  613 
Vladimirowka,     occupation    by    the 

Japanese,  106 
Voltumo,  case  of  the,  600 
Voluntary  Aid  Societies,  181-182 
Volunteer  corps,  104 


Volunteer  fleet,  109-113 
Vorwdrts,  case  of  the,  275 
Vroio  Houwina,  case  of  the,  569 

W 

War.  See  also  Aircraft  and  balloons  ; 
Angary  ;  Belligerents  ;  Enemy 
character  ;  Land  warfare  ;  Laws 
of  war  ;  Outlneak  of  war  ;  Post- 
liminium ;  Region  of  war ; 
Reprisals  ;  Sea  warfare  ;  Sub- 
jugation ;  World  War,  1914-1918 

armed  forces  in,  69 

causes  of,  78-82 
just,  81 
pretexts  distinct  from,  82 

cessation  of  hostilities,  simple,  320, 
357-358 

characteristics  of,  65-78 

civil,  75-76,  356,  405,  414 

commencement  of,  136,  140 

conception  of,  67-71 

declaration  of,  138-140 

distinguished       from      compulsive 
means  of  settling  disputes,  40-41 

effects  of  the  outbreak  of,   143-165 

ends  of,  74,  83 

guerilla,  76-78 

illegitimate,  330 

initiative  hostile  acts,  141-142 

kinds  of,  82 

legality  of,  65 

legitimate,  330 

means  of  securing,  330-355 

loans,  484-487 

manifestos  of,  136 

military  occupation  during,  72 

non-hostile  relations  of  belligerents 
during,  303-329 

outbreak  of,  136-142 

participants  in,  68 

poison  and  poisoned  arms  in,   91, 
171,  219,  281 

pretexts  for,  82 

private  individuals  : 

hostilities  by,  69,  174,  329,  345 
property  of,  during,  70 
status  during,  69-74,  173-175 

purpose  of,  74 

region  of,  92-99 

reservists,  seizure  of,  601-603 

right  to  make,  99 

rules  of,  79,  92 

temporary  condition,  a,  356 

termination  of,  356-379 

release  of   prisoners   after,   192, 
195-196 

territory  neutralised  in  case  of,  96- 
98 


670 


INTERNATIONAL  LAW 


War  {cojittnued) — 
theatre  of,  92 
treaties  relating  to,  86-90 
ultimatum,  140-141, 
usages  of,  85 
violation  of  rules  of,  342 

compensation  for,  353-355,  494 
War  crimes.     See  also  War  treason 
conception  of,  341 
kinds  of,  342-350 

punishment   for   committing,    182, 
349 

effect  of  treaty  of  peace,  on, 
369 
War  criminals : 

in  land  warfare,  72,  105,  106,  115, 

223,  319,  333,  368 
in  naval  warfare,  257 
War  of  Secession  (1861),  69 
War  treason,  346-349 
distinguished   from    real    treason, 
226 
Washburne,  case  of  Mr.,  219 
Washington : 

Three  Rules  of,  19,  453-456,  501 
Treaty  of,  454,  633 
Wemyss,  Admiral,  conclusion  of  ar- 
mistice    by,     in     World    War, 
323 
Westlake,  proposition   for  Court  of 

Appeal  in  prize  cases,  635 
Westminster,  Treaty  of  (1654),  607 
Wheaton,  on  resistance  to  visitation, 

614 
White  Flag.     See  Flags  of  truce 
William  P.  Frye,  case  of  the,  559, 

579,  624 
Windber,  case  of  the,  602 
Wireless  telegraphy,  use  of,  by  bel- 
ligerents, 490-493 
Women  in  World  War,  73,  105 
Woodfield,  case  of  the,  474 
World    War,    1914-1918.      See    also 
Austrian    Peace    Treaty ;     Bul- 
garian   Peace    Treaty ;    Enemy 
aliens  ;    German  Peace  Treaty  ; 
Trading  with   the  enemy  ;  Tur- 
key 
administration  of  justice  in  occu- 
pied territory,  244-245 
aerial  warfare,  73,  173,  300-302 
aircraft  in  neutral  territory,  464 
angary,  right  of,  508 
Appam,  case  of  the,  442 
armistices,  322-323,  324,  328,  362 
Austrian  Legation,  confiscation  of 

seat  of,  336 
Baltic  Sea,  hostilities  in,  99 
Belgium  attacked  by  Germany  dur- 
ing, 95,  430 


World  War  (continued) — 

Belgium  :   division  into  admini- 
strative districts,  237 
blockades  during,  522,  530 

long-distance,  539-544 
bombardment  of  undefended  places, 

217,  220,  221,  297 
Breslau,  case  of  the,  133 
British  Maritime  Rights  Order  in 

Council,  513 
British  ultimatum  to  Germany,  140 
cables,  interference  with,  298 
Cavell,  Nurse,  execution  of,  347 
civilians,    status    of,    effected    by, 
73-74 

treatment  of,  by  Germany,  175 
coloured  troops  in,  108 
conscription  during,  73 
consuls  during,  145 
contraband,  549,  551-561,  566 
capture  of  vessels  carrying,  578, 

584 
confiscation  of  vessels  carrying, 

580 
doctrine  of  continuous  voyages, 
574-576 
contributions  during,  211 
converted   merchantmen    in,    112, 

113,  253 
convoy,  right  of,  609 
Czecho-Slovaks,  position  of,  during, 

101 
Declaration   of  London  and,   397- 

398,  513,  521 
declaration  of  war,  138,  139 
deportations  from  occupied  terri- 
tories, 240 
destruction  of  neutral  prizes,  623- 

624 
devastation    by    German     armies, 

215 
Dominions,  position  of,  during,  93- 

94 
Dresden,  case  of  the,  475,  498 
economic  boycott  during,  61 
effect  on  contracts,  156-157 
Emden,  case  of  the,  292 
enemy   corporations    during,    122- 

124 
enemy  property   during,   158-159, 

200,  213 
enemy  subjects  in  neutral  States, 

121-122 
enemy  vessels  attacked  in  neutral 

waters,  475 
expanding  bullets  in,  172 
false  flag  used  by  belligerent  mer- 
chantmen, 291 
fishing  boats  in,  266 
I      Fryatt,  Captain,  case  o/,  258 


INDEX 


671 


World  War  {confinua!)  — 

German-owned  vessels  under  neu- 
tral flags,  127 

Ooeben,  case  of  the,  133 

Greece  blockaded  during,  55 
neutrality  of,  410,  431,  435 

Holland,     neutrality     questioned, 
436 

hospitals  bombed  during,  180 

hospital  ships  attacked,  "287 

hostages,  352-353 

isolation  of    the  Central   Empires 
during,  543 

liquid  fire  used  in,  171 

loans  during,  485 

Louvain,  burning  of,  241 

mails  during,  268 

mcn-of-^var  in  neutral  waters  dur- 
ing, 438 

merchant  vessels  in  enemy  ports  at 
outbreak  of,  163 

mines,  submarine,  261,  503 

neutral  asylum,  457,  462,  466,  475 

neutrality  and,  399,  413,  431,  446, 
448,  449 

violation  of,  490,  500 

neutrals'  subjects  fighting  in,  118 

neutral  vessels  proceeding  to  enemy 
port,  618 

prisoners,    treatment    of,    during, 
188,  189,  190,  194-195 
repatriation  of,  370 

private  property  during,  204-205 

Prize  Courts,  628 

prizes,  destruction  of,  275-276 
in  neutral  ports,  441-442 

region  of  war  in,  93-95,  540 

reprisals  during,  336,  337,  339,  340, 
426-428,  601-603 

requisitioning  of  Swedish  ships,  505 

requisitions   by   Germany   during, 
209,  211 


World  War  {continued)— 

reservists,  seizure  of,  601-603 
safe-conducts  granted,  306 
salvage  by  neutral    merchantmen, 

478-479 
search  of  vessels  during,  612 
shipwrecked    soldiers    and    sailors 

on  neutral  territory,  474 
Statute  of  Limitations  and,  152 
suVtjectB  of   belligerents  on  enemy 

territory,  148,  149-152 
submarines  in  neutral  ports,  466- 

407 
supplies  by  neutrals,  482,  483 
termination  of,  362 
transfer   of    enemy   goods  during, 

134-135 
transfer  of  enemy  vessels  during, 

132-133 
treaties  suspended  during,  146 
unneutral  service,  587,  595,  596 
violations  of   the  laws  of  war  in, 

332,  333,  335 
visitation  of  neutral  vessels,  605, 

609 
wireless  telegraphy  during,  491 
women  in,  73,  105 
Wounded  : 

articles  for  the  use  of,  561 
Geneva     Convention     respecting, 

87 
rescue  of,  by  neutral  vessels,  289, 

471,  472,  473 
treatment  of,  177-185,283-290,  436- 

437 


Zhtmshug,  case  of  the,  292 
Zouche,  on  contraband,  578 
Zurich,  Peace  of  (1859),  363 


Printed  hy  T.  and  A.  Constable  Ltp. 
at  the  Edinburgh  University  Press,  Scotland 


BINDING  LIST  JUN  151931 


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